44 Ill. Adm. Code | Title 44 Ill. Adm. Code — Government Contracts, Grantmaking, Procurement and Property Management

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.1 Title

This Part may be cited as the General Services Standard Procurement Rules.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.3 Authority

This Part is promulgated by the Chief Procurement Officer for General Services (CPO-GS) in accordance with the provisions of the Illinois Procurement Code (the Code) [30 ILCS 500]. This Part may be amended in accordance with the Code and the Illinois Administrative Procedure Act [5 ILCS 100/5].

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5 Policy

The principles of competitive bidding and economical procurement practices shall apply to all purchases and contracts by and for the State Agencies, except as otherwise provided by law, this Part and other applicable rules. It is the policy of the CPO-GS that all activities of the State Purchasing Officers (SPOs) and other designees related to the procurement process maximize the value of the expenditure of public funds in procuring contracts, and that those appointed and designated act in a manner that maintains public trust in the integrity of the process.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.8 Implementation of This Part

a) This Part establishes rules necessary and appropriate to implement the authorities granted by the Code relating to the procurement, supplies, including inventory level, services, real estate leases and related capital improvement, concessions and, as applicable, construction, and necessary rulemaking under the authority of the Code.

b) Section 10-20 of the Code creates four Chief Procurement Officers: one for procurements for construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board; one for procurements for all construction, construction-related services, operation of any facility, and the provision of any construction or construction related services or activity committed by law to the jurisdiction or responsibility of the Illinois Department of Transportation; one for all procurements made by a public institution of higher education; and one for all other procurement. For purposes of this Part the CPO for "all other procurements" shall be known as the Chief Procurement Officer for General Services (CPO-GS). This Part applies to all procurements and procurement rulemaking under the jurisdiction of the Chief Procurement Officer for General Services (CPO-GS) and any State Purchasing Officer (SPO) appointed by the CPO-GS.

c) This Part is intended to make procurement activities of State agencies uniform and consistent among and within the State agencies under the jurisdiction of the CPO-GS in order to facilitate participation in State procurements, encourage competition, and ensure that procurements are conducted in a fair and open manner. Implementation by and within State agencies shall be consistent with this Part. Operational interpretations are to be made in a flexible manner designed to secure the State's needs and protect the interests of the State of Illinois.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.10 Application

a) Except as specifically provided in the Code, the Code and this Part do not apply to any:

contracts between the State and its political subdivisions or other governments, or between State governmental bodies, except as specifically provided in the Code. [30 ILCS 500/1-10(b)(1)] (For purposes of this subsection (a)(1), "governmental bodies" includes the State universities and their governing boards, community colleges and their governing boards and school districts. This provision applies to contracts between governmental entities; it does not apply to State agencies use of contracts established by other governmental entities.)
grants (except for the filing requirements of Section 20-80 of the Code). [30 ILCS 500/1-10(b)(2)]
purchase of care. [30 ILCS 500/1-10(b)(3)]
hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual. [30 ILCS 500/1-10(b)(4)]
collective bargaining contracts. [30 ILCS 500/1-10(b)(5)]
purchase of real estate, except that notice of this type of contract with a value of more than $25,000 must be published in the Procurement Bulletin within 7 days after the deed is recorded in the county of jurisdiction. This applies to purchases whether outright or by means of an installment purchase. The exercise of an option to purchase in a real estate lease is exempt, but the underlying lease is not exempt from this Part. The notice shall identify the real estate purchased, the names of all parties to the contract, the value of the contract, and the effective date of the contract. [30 ILCS 500/1-10(b)(6)]
contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the chief legal counsel to the Governor shall give his or her prior approval when the procuring agency is one subject to the jurisdiction of the Governor, and provided that the chief legal counsel of any other procuring entity subject to the Code shall give his or her prior approval when the procuring entity is not one subject to the jurisdiction of the Governor. [30 ILCS 500/1-10(b)(7)] Anticipated litigation is that which a State agency may prosecute or defend before a court or administrative body and actions necessary to prepare for and conduct the effective legal prosecution or defense of litigation, including, but not limited to, the retention of counsel, investigators, expert witnesses and court reporters. This Section is applicable to equipment or services necessary in the furtherance of covert activities lawfully conducted by a State agency.
procurement expenditures by the Illinois Conservation Foundation when only private funds are used. [30 ILCS 500/1-10(b)(6)]
procurement expenditures by the Illinois Health Information Exchange Authority involving private funds from the Health Information Exchange Fund. "Private funds" means gifts, donations, and private grants.
public-private agreements entered into according to the procurement requirements of Section 20 of the Public-Private Partnerships for Transportation Act [630 ILCS 5] and design-build agreements entered into according to the procurement requirements of Section 25 of the Public-Private Partnerships for Transportation Act. [30 ILCS 500/1-10(b)(11)]
the electric power procurement process provided for under Section 1-75 of the Illinois Power Agency Act [20 ILCS 3855] and Section 16-111.5 of the Public Utilities Act [220 ILCS 5]. [30 ILCS 500/1-10(c)]
the procurement process provided for under Section 9.1 of the Illinois Lottery Law [20 ILCS 1605], except for Section 20-160 and Article 50 of the Code, and as expressly required by Section 9.1 of the Illinois Lottery Law. [30 ILCS 500/1-10(d)]
the process used by the Capital Development Board to retain a person or entity to assist the Capital Development Board with its duties related to the determination of costs of clean coal SNG brownfield facility, as defined by Section 1-10 of the Illinois Power Agency Act, as required in Section 9-220(h-3) of the Public Utilities Act, including calculating the range of capital costs, the range of operating and maintenance costs, or the sequestration costs or monitoring the construction of clean coal SNG brownfield facility for the full duration of construction. [30 ILCS 500/1-10(e)]
the process used by the Illinois Power Agency to retain a mediator to mediate sourcing agreement disputes between gas utilities and the clean coal SNG brownfield facility, as defined in Section 1-10 of the Illinois Power Agency Act, as required under Section 9-220(h-1) of the Public Utilities Act. [30 ILCS 500/1-10(f)]
the processes used by the Illinois Power Agency to retain a mediator to mediate contract disputes between gas utilities and the clean coal SNG facility and to retain an expert to assist in the review of contracts under Section 9-220(h) of the Public Utilities Act. The Code does not apply to the process used by the Illinois Commerce Commission to retain an expert to assist in determining the actual incurred costs of the clean coal SNG facility and the reasonableness of those costs as required under Section 9-220(h) of the Public Utilities Act. [30 ILCS 500/1-10(g)]
the process to procure or contracts entered into in accordance with Sections 11-5.2 and 11-5.3 of the Illinois Public Aid Code [305 ILCS 5]. [30 ILCS 500/1-10(h)]
the process used by the Capital Development Board to retain an artist or work or works of art as required in Section 14 of the Capital Development Board Act [20 ILCS 105]. [30 ILCS 500/1-10(j)]
procurements necessary for the Department of Agriculture, the Department of Financial and Professional Regulation, the Department of Human Services, the Department of Commerce and Economic Opportunity, and the Department of Public Health to implement the Cannabis Regulation and Tax Act [410 ILCS 705] if the applicable agency has made a good faith determination that it is necessary and appropriate for the expenditure to fall within this exemption. [30 ILCS 500/1-10(b)(18)]
State agency’s intergovernmental agreement with an Illinois public institution of higher education when the intergovernmental agreement permits the State agency to use a contract established by the Illinois public institution of higher education and the:

A) contract was competitively procured under the Procurement Code or procurement requirements applicable to the Illinois public institution of higher education;

B) contract is an integral part of the products or services produced by the Illinois public institution of higher education and received through the intergovernmental agreement; and

C) State agency does not have a contract or any obligation to the Illinois public institution of higher education’s contractor for items received from the contractor through the intergovernmental agreement.

b) Unless a record is subject to attorney-client privilege, the CPO-GS or SPO may access any records necessary to review whether a contract, purchase or other expenditure is exempt under Section 1-10 of the Code.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.12 Additional Exemptions Applicable to Artistic and Musical Services

a) Except as provided in this Section, the Code shall not apply to procurements made by or on behalf of State agencies for procurement expenditures necessary to provide artistic or musical services or theatrical productions held at a venue operated or leased by a State agency. [30 ILCS 500/1-12(a)]

b) In a manner prescribed by the CPO-GS, contracts entered into under this Section shall be published in the Procurement Bulletin within 14 days after contract execution. [30 ILCS 500/1-12(b)]

c) In a manner prescribed by the CPO-GS, each State agency shall, on a monthly basis, provide the CPO-GS a report of all contracts that are related to the procurement of supplies and services identified in this Section. At a minimum, this report shall include the name of the contractor, a description of the supply or service provided, the total amount of the contract, the term of the contract, and the exception to the Code utilized. A copy of any or all of these contracts shall be made available to the CPO-GS immediately upon request. [30 ILCS 500/1-12(b)]

d) The CPO-GS shall submit a report to the Governor and General Assembly no later than November 1 of each year that shall include, at a minimum, an annual summary of the monthly information reported to the CPO-GS. [30 ILCS 500/1-12(b)]

History

Source: Added at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.13 Additional Exemptions Applicable to Illinois Finance Authority

a) Except as provided in this Section, the Code shall not apply to contracts for legal, financial, and other professional and artistic services entered into on or before December 31, 2018 by the Illinois Finance Authority (IFA) in which the State is not obligated.

b) In a manner prescribed by the CPO-GS, contracts entered into under this Section shall be published in the Procurement Bulletin within 14 days after contract execution.

c) In a manner prescribed by the CPO-GS, IFA shall, on a monthly basis, provide the CPO-GS a report of all contracts that are related to the procurement of supplies and services identified in this Section. At a minimum, this report shall include the name of the contractor, a description of the supply or service provided, the total amount of the contract, the term of the contract, and the exception to the Code utilized. A copy of any or all of these contracts shall be made available to the CPO-GS immediately upon request.

History

Source: Added at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.15 Definition of Terms Used in This Part

As used throughout this Part, terms defined in the Illinois Procurement Code shall have the same meaning as in the Code and as further defined in this Section, and each term listed in this Section shall have the meaning set forth unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in that Section.

"Amendment" − A written modification to a contract. For example, an amendment may memorialize an action authorized by specific language in the contract (e.g., exercise of an option or showing price decrease or increase based on CPI), or may memorialize non-material changes (e.g., change in names of notice contacts or number of periodic status meetings). A "change order" is an amendment, but an amendment is not always a "change order".

"BEP Act" means Business Enterprise for Minorities, Women and Persons with Disabilities Act [30 ILCS 575]

"BEP Council" means the Business Enterprise Council for Minorities, Women and Persons with Disabilities created under Section 5 of the BEP Act. [30 ILCS 575/2]

"Bid" – The response to an Invitation for Bids.

"Brand Name or Equal Specification" – A specification that uses one or more manufacturer's names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet State requirements, and that allows the submission of equivalent products.

"Brand Name Specification" – A specification limited to one or more items by manufacturers' names or catalogue numbers.

"Building Services" – Repairs to or maintenance of the structure, but does not include janitorial or window washing services.

"Bulletin" or "BidBuy" − The volume of the Illinois Procurement Bulletin under the authority of the CPO-GS, unless the context clearly means the volume of another CPO or the Illinois Procurement Bulletin generally.

"Business Enterprise Program" means the Business Enterprise Program of the Commission on Equity and Inclusion. [30 ILCS 575/2]

"Change Order" − A change in a contract term, other than as specifically provided for in the contract, that authorizes or necessitates any increase or decrease in the cost of the contract or the time to completion. [720 ILCS 5/33E-2(c)] As used in this Part, "a change in a contract term" includes increases or decreases to estimated contracts, even if the change does not require modification to the contract.

"Chief Procurement Officer" or "CPO-GS" – The Chief Procurement Officer for General Services, as created by Section 10-20(4) of the Code or a designee.

"Code" – The Illinois Procurement Code [30 ILCS 500].

"Concession" – The right granted by a license, lease or other agreement to use State property, and sell directly or indirectly to the public, whether tangible or intangible. Also includes the right to engage in a certain activity on the lessor's property (e.g., a refreshment or parking concession).

"Construction Agency" − The Capital Development Board for construction or remodeling of State-owned facilities; the Illinois Department of Transportation for construction or maintenance of roads, highways, bridges, and airports; the Illinois Toll Highway Authority for construction or maintenance of toll highways; the Illinois Power Agency for construction, maintenance, and expansion of Agency-owned facilities, as defined in Section 1-10 of the Illinois Power Agency Act; and any other State agency entering into construction contracts as authorized by law or by delegation from the appropriate Chief Procurement Officer. [30 ILCS 500/1-15.25]

"Construction Support" − Equipment, supplies and services necessary to the operation of a construction agency's construction program, but does not include construction-related services.

"Contract" – All types of State agreements, including change orders and renewals, regardless of what they may be called, for the procurement, use, or disposal of supplies, services, professional or artistic services, or construction or for leases of real property, whether the State is lessor or lessee, or capital improvements, and including master contracts, contracts for financing through use of installment or lease-purchase arrangements, renegotiated contracts, amendments to contracts, and change orders. [30 ILCS 500/1-15.30] The term "contract" includes, but is not limited to, any extension, purchase, installment purchase, lease, rental, no-cost, and concession contracts. The term contract, as used in the Code and this Part, does not include: supplies or services the terms governing which are established by tariff of the Illinois Commerce Commission or the Federal Communications Commission and for which there is no authorized competition, bond or contracts related to bonds issued by or on behalf of a State agency when the contractor or vendor is neither selected nor paid by the State agency.

"Contract Award" − Except as otherwise defined in this Part for specific categories of procurements, the determination that a particular vendor has been selected from among other potential vendors to receive a contract, subject to the successful completion of final negotiations. Contract award is evidenced by the posting of a Notice to Award or a Notice of Intent to Award to the respective Bulletin after all State agency-required and SPO approvals have been obtained.

"Contractor" or "Vendor" – Any person having a contract with a State agency to furnish supplies, services or construction for an agreed upon price. The terms contractor and vendor are used interchangeably for purposes of the Code and this Part. The term shall also include subcontractors.

"Designee" − A person or category of persons identified by the CPO-GS or an SPO, in writing, to exercise procurement authority or to assist with the procurement process. A designee acts under procurement authority of the CPO-GS or SPO and has the responsibility for taking procurement actions in accordance with applicable laws, rules and policies, as limited by the terms of the delegation.

"Domestic Product" – A product that meets the requirements of the Procurement of Domestic Products Act [30 ILCS 5/7].

"Electronic Procurement" or "eProcurement" – Conducting all or some of the procurement function through a uniform, interactive, and secure electronic system.

"Emergency Contract Award" – For purposes of an emergency contract, an emergency contract is awarded on the earlier of the date a State agency communicates to a vendor to start work, publication on the Bulletin identifying the vendor of the required supplies or services, or the date the contract is signed by both parties.

"Emergency Statement" – The statement filed with the Procurement Policy Board and the Auditor General setting forth the actual or estimated amount expended, the name of the contractor involved, and the conditions and circumstances requiring the emergency procurement.

"Estimated Cost" − The amount expected to be paid by the State for a procurement transaction. It is representative of all known work and may include potential and expected unscheduled work arising out of the requirements, i.e., the total estimated contract value, but is not considered the maximum cost.

"Evaluation Criteria" − The requirements for the selection process, which may include the specialized experience, technical qualifications and competence, capacity to perform, past performance, experience with similar projects, assignment of personnel to the project, and other appropriate factors.

"Germane" − Closely or significantly related to, arising out of, or directly incidental to the original contract. Additional work or materials that are a substantial departure from the nature, scope or scale of the original contract are not germane.

"Grant" − The furnishing by the State of assistance, whether financial or otherwise, to any person to support a program authorized by law. It does not include an award the primary purpose of which is to procure an end product for the direct benefit or use of the State agency making the grant, whether in the form of goods, services, or construction. A contract that results from such an award is not a grant and is subject to the Code. [30 ILCS 500/1-15.42] When a grantor provides a grant to a State agency with a stipulation that the State agency issue subgrants to named persons, the subgrant or subcontract award is also a grant and the subgrantee or subcontractor is made an agent of the grantor.

"Grounds Services" – Lawn care, landscaping and snow and ice removal services.

"Invitation for Bids" or "IFB" – The process by which a purchasing agency requests information from bidders, including all documents, whether attached or incorporated by reference, used for soliciting bids. [30 ILCS 500/1-15.45] Also referred to as Competitive Sealed Bidding.

"Items" – Anything that may be procured under the Code and this Part.

"Master Contract" – A definite quantity or indefinite quantity contract awarded pursuant to the Act against which subsequent orders may be placed to meet the needs of a governmental unit or qualified not-for-profit agency. [30 ILCS 525/1] A master contract may be for use by a single State purchasing entity or for multiple State purchasing entities and other entities as authorized under the Governmental Joint Purchasing Act. [30 ILCS 500/1-15.47].

"Multiple Award" – An award that is made by a State agency to 2 or more bidders or offerors for similar supplies, services, or construction-related services for the State agency. [30 ILCS 500/1-15.48]

"Natural Resources Services" – These are services provided to the Department of Natural Resources or the Historic Preservation Agency. Services consist of non-supervisory activities of a routine, repetitive, non-discretionary nature not needing special expertise, training or education. These services include, but are not limited to, assisting in the operation of tree nurseries, fish hatcheries, game farms and sanctuaries; cleaning and maintenance of specialized facilities; repairing fences and building cages; mowing; and trail and ancillary facility repair.

"Offer" or "Proposal" − The response to a Request for Proposal or Request for Information for real estate or capital improvement leases.

"Protest Review Office" – The office designated in the solicitation document to which protests must be directed. This office will respond to or coordinate the response to the protest.

"Purchase of Care" – A contract with a person for the furnishing of medical, educational, psychiatric, vocational, rehabilitative, social, or human services directly to a recipient of a State aid program. [30 ILCS 500/1-15.68] Purchase of care includes the furnishing of services directly to recipients of State aid programs or applicants for a State aid program. Purchase of care contracts may include some services that are administrative in nature, as long as the contract primarily provides direct care to recipients of State aid programs. Examples of purchase of care contracts include, but are not limited to, contracts related to care coordination programs under Title XIX of the Social Security Act, including contracts with managed care organizations; primary care case management services; prepaid ambulatory health plans; prepaid inpatient health plans and direct care services provided under the Children and Family Services Act [20 ILCS 505]. Contracts that do not pertain to direct services to State aid recipients or that are primarily administrative in nature exceed the scope of the definition of a purchase of care contract and are not exempt from the requirements of the Code.

"Purchasing Agency" − A State agency that enters into a contract at the direction of a State purchasing officer authorized by a Chief Procurement Officer or the direction of a Chief Procurement Officer. [30 ILCS 500/1‑15.70]

"Qualified Products List" – An approved list of supplies described by model or catalog numbers that, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.

"Quotation" or "Quote" – An informal purchasing process that solicits pricing information.

"Renewal" − Except for real property and capital improvement leases, an agreement between the parties to a contract to authorize an additional contract period under the terms and conditions of the renewal provision in the original contract.

"Request for Information" or "RFI" − The process of requesting information from interested parties to aid the State in decision making. This type of RFI is not a procurement method and will not result in a participant receiving a contract.

"Request for Information for Real Property or Capital Improvement Leases" or "RFI-Real Property Leases" − The process of seeking proposals for leases of real property or capital improvements as outlined under Article 40 of the Code.

"Request for Proposals" or "RFP" – The process by which a purchasing agency requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals. [30 ILCS 500/1-15.75]

"Request for Qualifications" − The process of seeking statements of qualifications from vendors for a pre-qualified pool from which subsequent written submissions to the pre-qualified pool describe the specific supplies or services the CPO-GS or State agency require.

"Requesting Agency" – The agency that requests that the CPO or SPO conduct a procurement for its use.

"Responsible Bidder" or "Offeror" − A person who has the capability in all respects to perform fully the contract requirements and who has the integrity and reliability that will assure good faith performance. A responsible bidder or offeror shall not include a business or other entity that does not exist as a legal entity at the time a bid or proposal is submitted for a State contract. [30 ILCS 500/1-15.80]

"Responsive Bidder" – A person who has submitted a bid that conforms in all material respects to the Invitation for Bids. [30 ILCS 500/1-15.85]

"Responsive Offeror" – A person who has submitted an offer that conforms in all material respects to the Request for Proposals.

"Responsive Respondent" – A person who has submitted a response that conforms in all material respects to the Request for Information for real property and capital improvement leases.

"Scoring Tool" – The document used to record the method used by the individuals evaluating the responses to a solicitation to judge qualifications or otherwise show whether or how well the responses met requirements set forth in the solicitation.

"Services" – The furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance and financing. [30 ILCS 500/1-15.90]

"Site Technician Services" – These are services provided to the Department of Natural Resources or the Historic Preservation Agency. These services consist of non-supervisory activities of a routine, repetitive, non-discretionary nature not needing special expertise, training or education. These services include, but are not limited to, the maintenance of the site, including operating small farm-type equipment and trucks that do not require a Class C or D driver's license.

"Solicitation" – The document (e.g., IFB, RFP or RFI-real property lease) posted to the Bulletin requesting interested parties to submit a bid, offer or response for evaluation by the State. A small purchase request for quotation and a request for information to determine if there is any interest on the part of a State agency in the supplies or services of a vendor or vendors, or on the part of a vendor or vendors in providing the supplies or services, are not considered a solicitation.

"Specification for a Common or General Use Item" – A specification that has been developed and approved for repeated use in procurements.

"Specifications" − Any description, provision, or requirement pertaining to the physical or functional characteristics or of the nature of a supply, service, or other item to be procured under a contract. Specifications may include a description of any requirement for inspecting, testing, or preparing a supply, service, professional or artistic service, construction, or other item for delivery. [30 ILCS 500/1-15.95]

"State" − The State of Illinois, a State agency as defined in this Section, and all officers and employees of the foregoing, as appropriate, collectively or individually.

"State Agency" – Generally the term "State agency" includes all boards, commissions, agencies, institutions, authorities, and bodies politic and corporate of the State, created by or in accordance with the constitution or statute, of the executive branch of State government. However, this term does not apply to public employee retirement systems or investment boards that are subject to fiduciary duties imposed by the Illinois Pension Code [40 ILCS 5] or to the University of Illinois Foundation. "State agency" does not include units of local government, school districts, community colleges under the Public Community College Act [110 ILCS 805], and the Illinois Comprehensive Health Insurance Board. [30 ILCS 500/1-15.100] For purposes of this Part, however, only those State agencies that are under the jurisdiction of the CPO-GS are encompassed by the term State agency.

"State Purchasing Officer" or "SPO" – A person appointed by the CPO-GS pursuant to Section 10-10 of the Code and assigned to exercise procurement authority at the direction of the CPO-GS.

"State Witness" – An employee of the procuring agency, who observes the opening of sealed bids, proposals, responses or submissions. In the eProcurement system, the system may serve as the State witness.

"Subcontract" – A contract between a person and another person who has a contract subject to the Code, pursuant to which the subcontractor provides to the contractor, or another subcontractor, some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency. [30 ILCS 500/1-15.107]

"Subfactor" – A subset of a main evaluation factor. Main evaluation factors are identified in the solicitation. Subfactors that are separately evaluated within a factor are also identified in the solicitation.

"Supplies" – All personal property, including but not limited to equipment, materials, printing, and insurance, and the financing of those supplies. [30 ILCS 500/1-15.110]

"Suspension" – Prohibiting a vendor from submitting bids, offers, responses, submissions or quotes and from entering into a contract for a definite period of time and prohibiting a subcontractor from performing work on a State contract.

"Unsolicited Bid" or "Unsolicited Offer" or "Unsolicited Proposal" – Any bid, offer or proposal other than one submitted in response to a solicitation.

"Value" – The price the State agency will pay the vendor.

"Written Determination" – Approval or disapproval in the eProcurement system.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.25 Property Rights

No person shall have any right to a specific contract with the State unless that person has a contract that has been signed by an officer or employee of the purchasing agency with appropriate signature authority. The State shall be under no obligation to issue an award or execute a contract. [30 ILCS 500/1-25] No person who participates in a procurement action has any right to an award or subsequent contract. No notice of award can be issued and no contract can be executed without the determination of the CPO-GS, SPO or designee. Receipt of a solicitation or procurement document, or submission of any response to a solicitation or other procurement request, solicited or otherwise, confers no right to receive an award or contract, nor does it obligate the State in any manner.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.30 Constitutional Officers, and Legislative and Judicial Branches (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.525 Rules

a) Procurement under the jurisdiction of the CPO-GS or an appointed SPO shall be conducted in accordance with the Code and this Part, except as provided in this Section.

b) If a Public Act or court decision invalidates any Section of this Part or requires a different interpretation, the rules will be implemented in accordance with the legislation or court decision.

c) A State agency that has procurement needs not adequately addressed by this Part may provide a written request to the CPO-GS to address those procurement needs. The request shall include a statement explaining that the particular program needs of the State agency require a rule different from or in addition to this Part. The CPO-GS may elect to meet the State agency's need by issuing a CPO-GS Notice or amending this Part.

d) All proposed rules will be submitted to the Procurement Policy Board (PPB) before or during the public comment period established under the Illinois Administrative Procedure Act [5 ILCS 100]. Rulemaking, except for emergency rulemaking, shall be scheduled to allow the PPB at least 30 days to provide comments.

e) Emergency rules will be submitted to the PPB for review and comment with as much notice as is reasonably possible. A copy of the adopted emergency rules shall be provided to the PPB. The PPB shall be given opportunity to comment on rules proposed to replace the emergency rules.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.530 Policies and Procedures

a) The CPO-GS may issue policies and procedures to further implement the Code and this Part. Policies and procedures shall be maintained in a structured format. The CPO-GS shall periodically review policies and procedures and determine if any should be issued as an administrative rule.

b) The CPO-GS shall notify the PPB of changes to policies or new policies. The CPO-GS may give notice by including the PPB on the standard distribution list.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1005 Procurement Authority

a) The Chief Procurement Officers appointed by the Executive Ethics Commission will exercise the procurement authority created by the Code for the benefit of the State of Illinois and the State agencies under the jurisdiction of each CPO. The Executive Ethics Commission may appoint a temporary acting CPO to act in the absence of any CPO, such as during illness, vacation or other extended leave.

b) The CPO-GS's procurement authority extends to supplies, services, construction not under the jurisdiction of the Capital Development Board or the Department of Transportation, real estate leases and all other categories of need subject to the Code. The authority extends to all aspects of the procurement process, including, but not limited to, pre-solicitation activities, solicitation preparation, source selection, evaluation, award, contracts, dispute resolution and records subsequent to identification of need, except as otherwise provided for in the Code.

c) Any reference in the Code or this Part directing or authorizing a State agency to take procurement action is subject to the overall procurement authority of the CPO-GS and SPO as set forth in the Code and this Part.

d) The CPO-GS exercises procurement authority through one or more SPOs or temporary acting SPOs and other State agency staff assigned to the procurement function. Those assigned to assist shall recognize the role and authority of the CPO-GS. The CPO-GS may assign a SPO to one or more State agencies or may make assignments on a functional basis. The CPO-GS may appoint a temporary acting SPO with limited authority to act with an appointed SPO. In the absence of an appointed SPO, the CPO-GS may exercise the procurement authority of an SPO or may appoint a temporary acting SPO. Unless the Code or this Part prohibits a designee from performing a procurement action, the CPO-GS may designate procurement action to an SPO or a State agency, subject to the approval of the appropriate State Agency Head. The CPO-GS may reserve certain procurement activities to the CPO-GS and reserves the right to review and modify or overturn any action of an SPO, or any other designee.

e) An SPO will exercise procurement authority in accordance with direction and limitations established by the CPO-GS. The SPO will act primarily to review, authorize and approve State agency procurement activities and, to that end, exercises procurement authority with the assistance of the State agency procurement staff. The CPO-GS and SPO will determine and identify, in writing, procurement activities that must be conducted by the CPO-GS or SPO and those that may be designated to State agencies. Activities not reserved to the CPO-GS or SPO may be conducted by the State agency staff with CPO-GS/SPO oversight, subject to the approval of the appropriate State Agency Head.

f) Each State agency shall determine and provide an appropriate number of qualified staff and related resources to assist the SPO in meeting the procurement needs of the State agency. State agency staffs, while acting to assist the SPO, remain State agency employees.

g) The State agency is responsible for determining need, and upon direction or request to provide a rationale to the SPO for the proposed transaction or activity before the procurement may commence. Additional justification may be required by the SPO at later stages of the procurement process. The SPO may require that the justification include a statement that the proposed activity or transaction meets legal requirements and State agency policies and is in the best interests of the State of Illinois and the State agency.

h) State agency procurement staff are responsible:

for ensuring that all procurement activities, including those submitted to the SPO or CPO-GS for review, authorization or approval are in accordance with the Code, this Part, other applicable laws and rules, the internal policies of the State, the internal policies of the State agency; and
for obtaining all State and State agency approvals applicable to the particular stage of the procurement process.

i) The CPO-GS has the authority to approve or reject contracts for a State agency. In addition to this authority, the CPO-GS may direct an SPO to approve or reject contracts for a State agency, authorize an SPO to further authorize a State agency to enter into contracts, or authorize a State agency to enter into contracts. The State agency has the authority to sign and enter into a contract once an SPO provides written approval of the contract.

Any written determination regarding signature authorization shall be maintained by the CPO-GS and distributed to the SPO, State Agency Head, agency purchasing director and the State Comptroller.
If the CPO-GS or SPO approves a contract, the State agency must sign the contract in order for the contract to be legally binding on the State agency. The State agency may decline to sign a contract even if approved by the CPO-GS or SPO.
If the CPO-GS and SPO approve a contract for a State agency, in no event shall the CPO-GS or SPO assume any responsibility or obligation under the contract, financial or otherwise, to any party or person.

j) Procurement Compliance Monitors (PCMs)

PCMs have roles and responsibilities established in Section 10-15 of the Code. This includes overseeing and reviewing the procurement processes, having access to records and systems, and attending any procurement meeting.
Each State agency shall recognize these statutory roles and shall cooperate with PCMs in the conduct of their actions. Cooperation includes notice of, and access to, procurement meetings, and access to all procurement related records in whatever format they may exist, including documents, databases and systems. Failure to cooperate and resolve issues may be reported to the chief executive officer of the State agency and in certain cases may require reporting to the Office of the Executive Inspector General for the agencies of the Illinois Governor.
Should a PCM request review of a contract before final execution, the State agency shall not execute the contract until approval by the SPO.

k) Expedited Response

Any offeror, respondent, SPO, State agency, subcontractor or person may contact the CPO-GS at cpo@illinois.gov concerning any procurement matter and obtain information concerning the procurement process or a pending procurement, particularly in an effort to meet the objectives of Section 1-5 of the Code and Section 1.5 of this Part. The CPO-GS shall take all measures within its means and resources, in conformity with the Code and this Part, to address any inquiries in order to effectuate the aims of the Code and this Part. All contacts shall be placed in the procurement file in compliance with Section 50-39 of the Code.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.1010 Appointment of State Purchasing Officer (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1040 Central Procurement Authority of the Cpo-Gs

a) The CPO-GS may establish or may designate to a State agency the right to establish, master, scheduled or open-ended contracts for any item, and those contracts shall be utilized by State agencies in accordance with the terms of those contracts.

b) Any delegation for the establishment of master, scheduled or open-ended contracts by the CPO-GS to a State agency shall be in writing and agreed to in writing by the State Agency Head.

c) Central Procurement Procedures

Purchase Requests

Each State agency must initiate the procurement process through submission of a purchase request to the CPO-GS. The CPO-GS shall designate the format and requirements for submission through a CPO Notice to the agencies.

Chief Procurement Officer's Authority to Reject

When the CPO-GS, after consultation with the requesting agency, decides that processing the requested procurement is clearly not in the best interest of the State, or that further review is needed, the CPO-GS shall return the request to the requesting agency. A written statement of the reasons for its return shall accompany the returned request.

Determination of Contractual Terms and Conditions

The CPO-GS has authority to determine the terms and conditions of solicitations and contracts. The CPO-GS will consult with the requesting agency if the agency requests special terms and conditions.

d) The CPO-GS may, after consultation with and notice to any affected SPO, use central procurement procedures upon the CPO-GS' determination that those procedures are likely to result in significant efficiencies or economies.

e) The CPO-GS and the CPOs of the construction agencies will determine whether a supply item or group of supply items shall be included as a part of, or procured separately from, any contract for construction.

f) The CPO-GS has additional duties and responsibilities established in statute apart from the Code, and nothing in this Part shall be interpreted to limit those other statutory duties and responsibilities.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.1050 Procurement Authority of the Spo; Limitations (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1060 Designation

a) The CPO-GS may designate to any SPO or, in consultation with a State Agency Head, to a State agency authority to conduct certain named activities or functions. The CPO-GS may also designate to any SPO the CPO-GS's authority to conduct on behalf of the CPO-GS specific procurements or classes of procurements for multiple agency use. An SPO may request that the CPO-GS designate authority to that SPO. The State agency designated authority shall remain subject to CPO-GS and SPO authority. All such designations to a State agency shall be acknowledged and agreed to in writing by the State Agency Head.

b) Any exercise of designated authority shall be in accordance with the Code and this Part.

c) Designations shall be in writing and shall specify:

the activity or function authorized;
any limits or restrictions on the exercise of the designated authority;
whether the authority may be further designated;
the duration of the designation; and
any reporting requirements.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.1070 Toll Highway Authority

For activities related to the construction and operation of the toll highways under the jurisdiction of the Illinois Toll Highway Authority, the construction rules promulgated by the CPO-DOT shall be followed, except as provided in Section 1.4600.

History

Source: Amended at 50 Ill. Reg. 2498, effective February 9, 2026

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.1075 Department of Natural Resources (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1080 Illinois Mathematics and Science Academy (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1501 Bulletin

a) The Illinois Procurement Bulletin consists of four Bulletins, one for each of the Chief Procurement Officers designated in the Code. Each Bulletin will contain information relating to procurements under the authority of the appropriate CPO. References in this Part to Bulletin means the General Services volume, unless the context indicates a different meaning.

b) The CPO-GS shall have all rights in and to his or her volume of the Bulletin and shall determine the content, form, function, organization and structure and shall make revisions as necessary or desirable.

c) The Bulletin shall be published in electronic, web accessible form. The Bulletin can be found at https://bidbuy.illinois.gov/bso.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.1510 Publication of Illinois Procurement Bulletin (repealed)

History

Source: Repealed at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.1515 Registration (repealed)

History

Source: Repealed at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.1525 Bulletin Content

b) Notice of each procurement, except small purchases, shall be published in the Bulletin for at least 14 days and shall contain at least the following information:

the name of the purchasing agency (and using agency, if different);
a brief description of the supplies or services sought in the particular solicitation;
a procurement reference number, if used;
the date the procurement is first offered (procurements that require notice shall not be distributed to vendors prior to the date the notice is first published in the Bulletin);
the date, time and location for making submissions;
the method of source selection;
the name of the State Purchasing Officer in charge and the name of the State agency person assigned to the procurement;
instructions on how to obtain a comprehensive purchase description and any disclosure and contract forms;
encouragement to prospective vendors to hire qualified veterans; and
encouragement to prospective vendors to hire qualified Illinois minorities, women, persons with disabilities and residents discharged from any Illinois adult correctional center.

c) Notice of the award that was the subject of a notice in subsection (b) shall be issued electronically on the day of the award to the successful responsible bidder or offeror.

d) The SPO shall publish the notice of award to the Bulletin for 14 days, unless a shorter time is authorized by the Code or this Part. This notice shall contain at least the following information:

the information published in subsections (b)(1) through (7);
the contract price and the name of the vendor selected for award;
the number of unsuccessful bidders, offerors or respondents;
for each bidder, offeror or respondent who submitted a bid, offer or response, including the awarded vendor:

A) The bidder, offeror or respondent's name;

B) For IFBs, the amount bid by each bidder;

C) If applicable, the percentage of business to be performed by a certified Business Enterprise Program vendor as reflected in the utilization plan;

D) If applicable, the percentage of business to be performed by a certified Service Disabled Veteran Owned Small Business or certified Veteran Owned Small Business as reflected in the utilization plan; and

E) The name or names of the certified firms identified in the bidder's or offeror's submitted utilization plan; and

other disclosures required to be published in the Bulletin.

e) If an award to other than the lowest responsive and responsible bidder results pursuant to Section 20-10(g), an SPO must post in the Bulletin a written explanation with the notice of award. The written explanation must also be filed by the SPO with the Legislative Audit Commission and must include:

a description of the State agency's needs;
a determination that the anticipated cost will be fair and reasonable;
a listing of all responsible and responsive bidders; and
the name of the bidder selected, the total contract price, and the reasons for selecting that bidder.

f) Notice of each contract renewal shall be posted in the Bulletin within 14 days after the determination by the purchasing agency to execute the contract. The date of determination to execute shall be the date of the last signature required by the State agency to move forward with the renewal. Each State agency shall identify the renewal approval process and shall ensure the renewal notice contains the required information and is posted to the Bulletin within the prescribed time. The notice shall require all of the information required under subsection (b) or shall reference this information electronically, which may include attachment of or reference to the original Bulletin notice.

g) Notice of renegotiated contracts and change orders for all procurements other than small purchase procurements that increase the cost of a contract by more than $10,000 or the time of completion by a total of 30 days or more shall be posted on the Bulletin for 14 days.

h) The following information regarding emergency procurements shall be published in the Bulletin within 5 days after emergency contract award:

name of the procuring agency (and using agency, if different);
name of the vendor selected for award;
brief description of what services or supplies the vendor intends to provide;
total price (if only an estimate is known, it shall be published, but a subsequent notice repeating all required information shall be published when the final amount is known);
reasons for using the emergency method of source selection;
name of the SPO and the name of the State agency person in charge of the procurement;
name of the State agency person who authorized the emergency contract action; and
statement of emergency procurement, if available, and, if not available, to be filed as an amendment to the notice within 10 days after the emergency procurement.

i) In addition to the requirements of subsection (h), the notice of hearing to extend an emergency contract must be published electronically in the Bulletin at least 14 days prior to hearing. A completed emergency extension justification form as prescribed by the CPO-GS shall be published as part of the notice of hearing.

j) The following information regarding intent to enter into a sole source contract shall be published in the Bulletin at least 14 days prior to entering into the contract with the designated sole source vendor:

name of the purchasing agency (or using agency, if different);
name of the intended sole source vendor;
a description of what services or supplies the vendor intends to provide;
name of the SPO and the name of the State agency person in charge of the procurement;
the date, time and location of the scheduled public hearing with an explanation that the hearing will be cancelled if no hearing request is received; and
a completed sole source justification form as prescribed by the PPB.

k) Each purchasing agency shall post in the Bulletin a copy of its annual report of utilization of businesses owned by minorities, women and persons with disabilities. Posting is due within 10 days after the purchasing agency submits its report to the Business Enterprise Council in accordance with Section 6(c) of the BEP Act.

l) Other notices shall be published on the Bulletin as provided by the Code, including notices related to suspensions and debarment, Business Enterprise Program and Small Business Set-Aside waivers, and other matters of public interest.

m) The CPO-GS may allow another CPO or another governmental entity to publish procurement related notices and other matters of public interest to the Bulletin.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.1535 Vendor Portal

a) In consultation with the PPB and State agencies, the CPO-GS may operate a vendor portal, use another CPO's vendor portal, or jointly operate a vendor portal with other Chief Procurement Officers if a single portal better serves the needs of State agencies and the vendor community. A vendor portal shall allow prospective vendors to:

Provide certifications, disclosures, registrations and other documentation needed to do business with the State in advance of a particular procurement;
Submit the vendor's registration number, with a confirmation the portal information is current, as part of the vendor's response to a competitive solicitation or a contracting process.

b) The CPO-GS may accept the registration of a vendor from another CPO's vendor portal provided the portal information is current, in lieu of certifications, disclosures, registrations and other documentation needed to do business with the State in advance of a particular procurement.

c) Those documents in the vendor portal that contain information required by the Code to be included in a contract, including but not limited to financial disclosures and conflicts of interest and certifications, shall be included in the contract filed with the Comptroller. For example, business and directory information is not required by the Code to be included in a contract and is not required to be filed with the Comptroller as part of the contract.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.1550 Official State Newspaper (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1560 Alternate and Supplemental Notice

a) If the electronic Bulletin cannot be published, the CPO-GS may publish notices in one of the other CPOs' Bulletins on an interim basis. If no electronic version of the Bulletin can be published, the CPO-GS may designate its website as its volume of the Bulletin. If necessary, the CPO-GS may designate the Official State Newspaper or other newspaper of general circulation as its volume of the Bulletin. All newspaper notices will be published in the Bulletin when it becomes available, but that publication will not extend any procurement-related timeframes.

b) Publication in the Bulletin may be supplemented by publication elsewhere at the discretion of the CPO-GS or SPO. Examples include publication in:

a newspaper of general circulation;
a newspaper of local circulation in the area pertinent to the procurement;
industry media;
agency website; or
CPO-GS' website.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.1570 Error in Notice

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin within a reasonable time after the original publication. A correction that results in a change of procurement method or a material change in the requirements set forth in a solicitation may require extension of the time to respond to the original solicitation as set forth in the correction at the discretion of the SPO, taking into consideration impact on the State as well as on vendors.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.1580 Direct Solicitation

In addition to giving notice in the Bulletin, the SPO or State agency staff authorized by the SPO may directly contact prospective vendors by providing copies of solicitations or other procurement information. Direct solicitation may be oral or in writing, but all vendors shall receive the same information as provided in the Bulletin. No direct solicitation shall be made prior to the date any required notice first appears in the Bulletin.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1585 Notice Time

Each solicitation shall be published in the Bulletin at least 14 days prior to the date set for opening, unless a shorter time is authorized by the Code or this Part.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1590 Retention of Bulletin Information (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.1595 Availability of Solicitation Document

Procurements that require notice shall not be distributed to vendors prior to the date the notice is first published in the Bulletin. A copy of the solicitation shall be made available for public inspection at the State agency procurement office. This copy shall be available as of the date and time the solicitation is published in the Bulletin.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.2005 General Provisions

a) Solicitation Response

A solicitation may contain forms that must be returned or may require compliance in a prescribed format. If a form or format is prescribed, prospective vendors shall submit as instructed.

The date and time paper bids, offers, responses or submissions are received shall be recorded. The paper bids, offers, responses or submissions shall be stored in a secure manner (e.g., locked filing cabinet, locked desk, or locked room with access to the secure location limited to known persons) by the person responsible for receiving the paper bids, offers, responses or submissions.
The SPO and State agencies shall maintain the confidentiality of bids, offers, responses or submissions. No information within bids, offers, responses or submissions received shall be disclosed to anyone prior to opening. State employees may confirm receipt of the bid, offer, response or submission to the bidder, offeror, respondent or vendor.
If a paper bid, offer, response or submission is opened for identification purposes or in error, the procurement file shall include a signed statement explaining the reason for the mistake or error, including the name of every person involved. The paper, response or submission shall be resealed until the time set for the opening of the solicitation.

b) Late Bids, Proposals, Responses, Submissions, Quotes, Withdrawals, Modifications, and Other Documents, Entries or Emails

Any bid, proposal, response or quote (including any modification, withdrawal or other procurement-related submission) received after the due date and time for receipt, or at other than the specified location, including eProcurement or the specified email address if applicable, is late. A submission that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered. State employees shall not be responsible for ensuring subsequent delivery of misdelivered items. State employees shall not be responsible for failed submissions in the eProcurement system. Delivery at the specified location and time shall be the sole responsibility of the bidder or offeror.
No late procurement-related submission will be considered unless the SPO, and not a designee, determines it would have been timely but for the action or inaction of State personnel directly serving the procurement activity (e.g., providing the wrong address) or a system outage of the eProcurement system. It is the responsibility of the bidder, offeror, respondent or vendor to ensure delivery at the time and to the place specified. Bidders, offerors, respondents or vendors submitting a late bid, proposal, response or quote will be notified and given the opportunity to retrieve the submission at their cost. Late submissions not returned to the vendor will be destroyed after all related procurement activity is complete and the resulting contract has been executed.
Records shall be made and kept for each late bid, proposal, response, quote, modification or withdrawal.
Any other submission, document or entry in the Bulletin or by email that relates to a bid, proposal, response, submission or quote that has a time or date deadline shall be treated in the same manner as a late bid, proposal, response, submission or quote.

c) Extension of Solicitation Due Date

The SPO may, prior to the date or time for submitting or modifying a bid, proposal, response, submission or quote, extend the date or time for the convenience of the State.
The SPO may, 72 hours prior to the time for submitting a bid, proposal, or response, allow modification to the solicitation for the convenience of the State. If notice of a modification to a solicitation cannot be made at least 72 hours in advance of the time the response is due, the solicitation shall be cancelled and reissued or the SPO shall extend the time to respond for a reasonable period of time.
All notices under this subsection (c) will be provided electronically and posted on the Bulletin.

d) Bid/Proposal/Response/Submission Firm Time

Unless otherwise provided in the solicitation, the vendor's bid/proposal/response/submission must be kept firm for at least 30 days after the opening date.
After opening bids, proposals, responses or submissions, the SPO may request bidders, offerors, respondents or vendors to extend the time during which the State agency may accept the bids, offers, responses or submissions, provided that, with regard to bids, no other change is permitted. This extension shall not exceed 180 days after the opening and does not provide an opportunity for others to submit bids, offers, responses or submissions.

e) Electronic Submissions

The solicitation or small purchase request for quotation may state that electronic submissions will be considered if they are received at the designated location (e.g., eProcurement system or email) by the time and date set for receipt. Any required attachments will be submitted as stated in the solicitation or small purchase request for quotation.
Electronic submissions authorized by specific language in the solicitation or small purchase request for quotation will be opened in accordance with State electronic security measures in effect at the time of opening.

f) Intent to Submit

The solicitation may require that vendors submit, by a certain time and date, a notice of their intent to submit a bid, offer, or response for the solicitation. Bids, offers, or responses submitted without complying with the notice of intent requirement may be rejected.

g) Only One Bid, Proposal, Response, Quote, or Submission Received

If only one bid, proposal, response, quote, or submission is received, and if it meets all requirements, the SPO may award to the single bidder, offeror, respondent, or vendor if the price submitted is fair and reasonable, and other prospective bidders, offerors, respondents, or vendors had reasonable opportunity to respond or there is not adequate time for resolicitation or publication of another request for quote. Otherwise, the SPO may cancel the solicitation. Publication of the solicitation or request for quote in the Bulletin creates a presumption that other prospective bidders, offerors, respondents, or vendors had reasonable opportunity to respond.

h) Alternate or Multiple Bids, Proposals or Responses

Alternate bids, proposals or responses may be accepted if:

A) permitted by the solicitation and in accordance with instructions in the solicitation; or

B) only one vendor responded, in which case the alternate submission may be evaluated and treated in accordance with Section 1.2025 (Sole Economically Feasible Source Procurement); or

C) the low bidder, or best qualified offeror, who has met all requirements of the solicitation has provided a lower cost or better value alternative that meets all of the material requirements of the solicitation.

Multiple bids, proposals or responses may be accepted if permitted by the solicitation and submitted in accordance with instructions in the solicitation.

i) Multiple Items

A solicitation may call for pricing of multiple items of similar or related type. Award shall be as specified in the solicitation based on an individual line item, a group total of certain items, a core list, a "market basket" of related items representative of the total requirement, a grand total of all items, or other grouping method.

j) "All or None" Bids or Proposals

All or none bids or proposals may be accepted if the evaluation shows an all or none award to be the lowest cost or best value of those submitted. If the bidder or offeror restricts acceptance of the bid or offer, or a portion thereof, by such a statement as "all or none", the bidder or offeror has "qualified" the bid or offer, which may render the bid or offer non-responsive.

k) Conditioning Bids or Proposals Upon Other Awards

Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall be rejected.

l) Unsolicited Bids, Offers or Responses

An award may not be made based on an unsolicited bid, offer, response or submission in place of the notice and competition requirements of the Code and this Part, unless otherwise provided in joint and cooperative purchasing.

m) Clarification of Bids, Proposals, Responses, Submissions or Quotes

The SPO, or State agency with SPO approval, may request that a vendor clarify its bid, proposal, response, submission, or quote as a part of the evaluation process. For example, the vendor may be asked where information that relates to a mandatory or desired specification may be found in the vendor's bid, proposal, response, submission or quote. A vendor shall not be allowed to change its bid, proposal, response, submission or quote in response to a request for clarification. A clarification is not an opportunity to make changes or for submission of best and finals offers as authorized elsewhere in this Part.

n) Assignment, Novation or Change of Name

Assignment. No State contract is transferable, or otherwise assignable, without the prior written consent of the CPO-GS or SPO, provided, however, that a vendor may assign their receivables under a contract after due notice to the State. The assignee, except in the case of assignment for payment only, must meet all requirements for contracting with the State. Any purported assignment without prior written consent shall be null and void.
Recognition of a Successor in Interest; Novation. With the exception of real property leases, when in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the State; and

C) the transferor waives all rights under the contract as against the State; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the State, furnish a satisfactory performance bond.

Real Property Leases Successor in Interest; Declaration. When in the best interest of the State, a successor in interest may be recognized in a signed declaration in which the transferee agrees that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the State; and

C) the transferee will provide disclosures of ownership interests in the real property in a manner prescribed by the CPO-GS.

Change of Name. A vendor may submit to the SPO a written request to change the name in which it holds a contract with the State. The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.

o) Contracting for Installment Purchase Payments, Including Interest

Contracts may provide for installment purchase payments, including interest charges, over a period of time. The interest rate may not exceed that established by law, including the Bond Authorization Act [30 ILCS 305].

p) Incorporation by Reference

A solicitation may incorporate documents by reference provided that the solicitation specifies where the documents can be obtained.

q) Use of Source Selection Method that is Not Required

If a purchasing agency uses a method of source selection that it is not, by law, required to use (e.g., use of a competitive sealed bid for a small purchase or a sole source for a small purchase with sole source conditions), the purchasing agency is bound to compliance with the Code and this Part governing the method of source selection used.

r) Vendor Signature

A bid or proposal submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the SPO within the time specified by the SPO.

s) Stringing

Stringing of procurements is prohibited.
"Stringing" includes:

A) Dividing or planning procurements, including treatment of different facilities of the State agency as having separate procurements for the same need, with the intent to avoid use of competitive procedures.

B) Dividing the procurement of supplies or services that comprise a system, project, or other foreseeable need with the intent to avoid competitive procurement requirements.

Periodic purchases of similar supplies from several different vendors to maintain inventory is not stringing unless the purchases are planned to avoid the use of competitive procedures.

t) Confidential Data

A vendor must clearly identify, by page and paragraph, any information submitted to the State claimed to be exempt from the disclosure requirement of the Illinois Freedom of Information Act [5 ILCS 140] (FOIA), including information the vendor claims is a trade secret or other competitively sensitive, confidential or propriety information belonging to the vendor.

The vendor must identify the basis of the claim of confidentiality or exemption from FOIA and show how that basis applies to the request for confidentiality or exemption. Information submitted without a claim of confidentiality or exemption from FOIA may be disclosed to the public without notice or permission.
A State agency in receipt of a FOIA request shall attempt to provide reasonable notice and opportunity to a vendor claiming an exemption under FOIA or claiming the information should not be provided due to trade secret or competitively sensitive, confidential or proprietary information to object prior to disclosure of any material.
Information submitted with a claim of confidentiality or exemption from FOIA may still be disclosed to the public if determined by a court or the Public Access Counselor for the Illinois Attorney General that the claim of confidentiality or exemption from FOIA does not meet the requirements for withholding the information under FOIA.

u) Notice of Subcontractor

Any contract entered into under this Part shall state whether the services of a subcontractor will be used. The contract shall include the names and addresses of all known subcontractors with subcontracts with an annual value of more than $50,000, the general type of work to be performed by each subcontractor, and the expected amount of money each will receive under the contract. [30 ILCS 500/20-120(a)]
If, at any time during the term of the contract, a contractor desires to add or change any subcontractors with subcontracts with an annual value of more than $50,000, the contractor shall promptly notify the State agency, in writing, of the names and addresses of the proposed subcontractors, the general type of work to be performed by the proposed subcontractor, and the expected amount of money each new or replaced subcontractor will receive under the contract.
No contractor shall change a subcontractor listed in the original bid or proposal, except for documented good cause and with the consent of the SPO.

A) Good cause may include, but is not limited to:

i) failure of the subcontractor to execute a written contract after a reasonable period of time after the written contract is presented to the subcontractor by the contractor;

ii) bankruptcy of the subcontractor;

iii) death or disability of the subcontractor, if the subcontractor is an individual;

iv) dissolution of the subcontractor, if the subcontractor is a corporation or partnership;

v) failure of the subcontractor to meet bond requirements as specified in the solicitation;

vi) subcontractor becomes ineligible to perform on the subcontract because the subcontractor is suspended, debarred or otherwise ineligible to perform;

vii) a series of failures by the subcontractor to perform in accordance with the specifications, terms and conditions of its subcontract;

viii) failure of the subcontractor to comply with a requirement of law applicable to the subcontractor; or

ix) failure or refusal of the subcontractor to perform the subcontract.

B) A request of a contractor for a substitution of a listed subcontractor shall be submitted in writing to the State agency and SPO and shall include the reasons for the request. Approval of the SPO for a subcontractor substitution shall be made in writing and be included in the procurement file.

C) Failure of a contractor to comply with this Section may result in cancellation of its contract or be considered grounds for suspension.

v) Pre-Solicitation Assistance

For purposes of this subsection (v), "business" includes all individuals with whom a business is affiliated, including, but not limited to, any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder of a business. [30 ILCS 500/50-10.5(e)]
Prohibited Bidders. Except as provided in subsection (v)(5), Section 50-10.5(e) of the Code prohibits any person or business from bidding or entering into a contract if the person or business assisted an employee of the State of Illinois, who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract by reviewing, drafting, directing, or preparing any invitation for bids, request for proposal or request for information or provided similar assistance except as part of a publicly issued opportunity to review drafts of all or part of these documents. [30 ILCS 500/50-10.5(e)]
Non-Prohibited Acts. This Section does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

A) Initiated a communication with an employee of the State to provide general information about industry trends and innovations, products, services or industry best practices.

B) Responded to a communication initiated by an employee of the State for the purposes of providing information to evaluate new products, services or technologies.

C) Received or possessed written material obtained from a State employee from public sources, such as through an internet search, or literature packets obtained in conjunction with an event such as a trade show.

D) Provided, at the request of the State, general marketing material or makes a general sales presentation to show the person's qualifications or product capabilities. Material may be personalized for the procuring agency provided any personalization is obtained from publicly available sources.

E) Provided technology supplies or services demonstrated to the State that represent industry trends and innovation and is not specifically tailored to meet the State's needs.

Prohibited Acts

A) Specifications. A person or business may not submit specifications to a State agency unless requested to by a State employee. With the exception of standard specifications that a vendor makes available to any potential purchaser, a State purchasing officer or person designated by the SPO must approve a State employee's request for specifications for a particular transaction.

B) Assistance to State Employees. A person or business is prohibited from bidding on a solicitation and from having a contract or subcontract if the person or business assisted an employee of the State agency who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract. Assistance to a State employee may include any of the following:

i) Draft (writes or assists the State with writing all or part of the procurement document);

ii) Review (reads the document or comments on the procurement document or signified approval or disapproval);

iii) Direct (any activity relating to giving instructions or commands or in supervising or overseeing the preparation of the procurement document);

iv) Prepare (any activity relating to organizing or distributing the documents, including through the Bulletin); or

v) Provides similar assistance, e.g., conducting research or providing any advice used in drafting, reviewing, directing or preparing procurement documents.

C) A person (and its affiliated or related entities) that contracts with a State agency to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement.

Exceptions. Any person or business who responds to an advertised request for information or other publicly available opportunity to provide information related to the procurement need or to review drafts of all or part of proposed procurement documents shall not be disqualified by virtue of responding to the State's publicly advertised request.

w) Pre-Submission Conference

A pre-submission conference may be conducted to enhance potential vendors' understanding of the procurement requirements. The pre-submission conference shall be announced as part of the solicitation notice. The conference may be designated as "attendance mandatory" or "attendance optional". If there is a reason to limit who may attend the mandatory pre-submission conference, the reason shall be clearly explained in the Pre-submission Conference section of the solicitation document. The pre-submission conference shall be held long enough after the solicitation has been issued to allow potential vendors to become familiar with it, and sufficiently before solicitation opening to allow consideration by vendors of pre-submission conference results in preparing their responses. Supporting documentation of the pre-submission conference shall be supplied to all prospective vendors known to have received a solicitation by posting the information on the Bulletin. Nothing stated at the pre-submission conference shall change the solicitation unless a change is made by written modification to the solicitation. Information conveyed in pre-submission conferences is not reportable under Section 50-39 of the Code, but any amendments resulting from the conference shall be supplied to all those prospective vendors through posting on the Bulletin.

x) Federally Funded Purchases

For purchases funded in whole or in part by United States Government funds, the solicitation will identify the federal statutes and regulations with which the vendor must comply.

y) Evaluation Team. Evaluation team members shall be determined by the State agency, tailored to the particular solicitation, and include, as appropriate, technical or other personnel with expertise to ensure a comprehensive evaluation of offers. Evaluation team members must not have any conflicts of interest or apparent conflicts of interest and must commit to the time to complete all evaluations and attend any necessary evaluation meetings. The State agency's selection of the evaluation team members must be approved by the SPO, taking into consideration any conflicts of interest or apparent conflicts of interest. The evaluation team members may be removed by the SPO for good cause, such as failure to comply with instructions or directions of the SPO or to ensure the integrity of the procurement. The SPO shall state in writing his or her reasons for removing a team member.

z) The procurement file shall include the contract file required by the Code.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2010 Competitive Sealed Bidding

a) Application

Competitive sealed bidding, also referred to as Invitation for Bids, is the required method of source selection, except as allowed by the Code and this Part. The provisions of this Section apply to every procurement required to be conducted by competitive sealed bidding.

b) Invitation for Bids

Use. An IFB is used to initiate a competitive sealed bid procurement.
Content. An IFB shall include, at a minimum, the following:

A) instructions and information to potential bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the location to which bids are to be delivered, and the maximum time for bid acceptance by the State;

B) the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description;

C) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable and State mandated certifications; and

D) A form or format that will specify or organize the manner of price submission and that the bidder shall submit along with all other necessary submissions, including disclosure forms.

Delivery-Related Costs

Unless otherwise provided in the solicitation, the bid price includes transportation, transit insurance, delivery, installation and any other costs.

c) Amendments to Invitations for Bids

Form. Amendments to IFBs shall be clearly identified and shall reference the portion of the IFB being amended.
Distribution. Amendments shall be made available to all prospective bidders known to have received an IFB through posting on the Bulletin.
Timeliness. Amendments shall be made available at least 72 hours prior to the date or time for submitting a bid to allow prospective bidders to consider them in preparing their bids. If notice cannot be made at least 72 hours in advance of the time responses are due, the solicitation may be cancelled and reissued or the SPO may extend the time to respond for a reasonable period of time.

d) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received in the location designated in the IFB prior to the time and date set for bid opening.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

e) Opening and Recording of Bids

Bids and modifications shall be opened publicly at the time, date and place designated in the IFB in the presence of a State witness or through an electronic procurement system selected by the CPO-GS. The person opening bids shall not serve as witness.
The CPO-GS shall determine information that shall be recorded, read and made available at the opening, including items such as the name of each bidder, the bid price and such other information the CPO-GS determines is appropriate.

f) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the IFB, except as permitted in the Code and this Part. The IFB shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder. No bid shall be evaluated for any requirements or criteria for price or responsiveness that are not disclosed in the IFB.
Responsibility. Responsibility of prospective vendors is covered by Section 1.2046 (Responsibility).
Responsiveness. A bid must conform in all material respects to the IFB.

A) Product or Service Acceptability. The IFB shall set forth any evaluation criteria to be used in determining product or service acceptability. It may require the submission of bid samples, descriptive literature, technical data, references, licenses, or other information or material. It may also provide for accomplishing any of the following prior to award:

i) inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

ii) examination of such elements as appearance, finish, taste or feel;

iii) other examinations to determine whether the product or service conforms to any other purchase description requirements.

B) The acceptability evaluation is not conducted for the purpose of determining whether one bidder's product or service capability is superior to another, but only to determine that a bidder's offering is acceptable as set forth in the Invitation for Bids. Any bidder's offering that does not meet the acceptability requirements shall be rejected.

C) When the IFB provides a form or format for submitting price and the bidder deviates from the form or format, the bidder shall be declared nonresponsive by the SPO if the price submitted by the bidder cannot be discerned from the response.

Determination of Lowest Bidder. Following determination of product or service acceptability as set forth in this subsection (f), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the IFB, including options if applicable. Only objectively measurable criteria that are set forth in the IFB shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost, administrative cost and ownership or life-cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible, the evaluation factors shall be reasonable estimates based upon information the State has available concerning future use and shall treat all bids equitably. Pricing for optional supplies or services, or for renewal terms, may be considered, particularly when the pricing for those items or terms is unbalanced when compared to other pricing in the bid.
Price Negotiation. Negotiations are permitted with the low bidder to obtain a lower price for the item bid.
No Disclosure of Information

A) Other than information that was recorded, read and made publicly available at the opening of the bids, the State agency conducting the procurement shall not disclose any information contained in any bid outside of contracting officers, identified State agency personnel or others specifically authorized by the CPO-GS or SPO until after the award of the proposed contract has been posted to the Bulletin. This does not restrict the disclosure of information to, or receipt by, State agency personnel identified by the State agency head or the chief executive officer of a board or commission to receive the information. The SPO may require confidentiality and conflict statements from those persons identified by the agency head or the chief executive officer to receive the information.

B) The agency head or chief executive officer may identify:

i) State employees who have primary responsibility for the procurement;

ii) State employees who exercise experience or expertise in the subject matter of the particular procurement in the normal course of business and as part of official responsibilities; or

iii) State employees who exercise oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2012 Multi-Step Sealed Bidding and Proposals

a) Definition

Multi-step sealed bidding or multi-step sealed proposal (MSB/P) is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders or offerors submit unpriced technical offers to be evaluated by the State, and a second phase in which those bidders or offerors whose technical offers are determined to be acceptable during the first phase have their price bids or offers considered.

b) Conditions for Use

The MSB/P method may be used when it is determined in writing by the SPO that it is not practical to prepare initially a definitive purchase description that will be suitable to permit an award based on price. MSB/P may be used when it is considered desirable:

to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and
to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, when appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description.

c) Pre-Submission Conference in Multi-Step Sealed Bidding

Prior to the submission or evaluation of unpriced technical offers, a pre-submission conference as contemplated by Section 1.2005(w) may be conducted by the SPO or designee.

d) Procedure for Step One of MSB/P

Form. MSB/P shall be initiated by the issuance of an IFB in the form required by Section 1.2010 (Competitive Sealed Bidding) or an RFP in the form required by Section 1.2015 (Competitive Sealed Proposals), except as otherwise provided in this subsection (d). In addition to the requirements set forth in Section 1.2010 or 1.2015, the multi-step IFB or multi-step RFP shall state:

A) that it is a multi-step sealed bid procurement, that unpriced technical offers will be evaluated, and that priced bids or offers will be considered only in the second phase and only from those bidders or offerors whose unpriced technical offers are found acceptable in the first phase;

B) the criteria to be used in the evaluation of the unpriced technical offers;

C) that the SPO or designee may conduct oral or written discussions of the unpriced technical offers; and

D) that the item being procured shall be furnished generally in accordance with the bidder's or offeror's technical offer as found to be finally acceptable and shall meet the requirements of the IFB or RFP.

Amendments to the IFB or RFP. After receipt of unpriced technical offers, amendments to the IFB or RFP shall be distributed only to bidders or offerors who submitted unpriced technical offers, and those bidders or offerors shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the SPO, a contemplated amendment will significantly change the nature of the procurement, the IFB or RFP may be canceled in accordance with Section 1.2040 (Cancellation of Solicitation and Contract Awards; Rejection of Bids or Proposals) and a new IFB or RFP issued.
Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers submitted by bidders or offerors shall be marked with the date and time received.
Step one of the MSB/P and modifications shall be opened publicly at the time, date and place designated in the MSB/P in the presence of a State witness or through an electronic procurement system selected by the CPO-GS. The person opening bids shall not serve as witness. Only the name of the bidder or offeror shall be read. Technical offers shall not be disclosed to persons not authorized by the SPO.
Evaluation of Unpriced Technical Offers. The unpriced technical offers submitted by bidders or offerors shall be evaluated solely in accordance with the criteria set forth in the IFB or RFP.
Discussions. The State agency, in consultation with the SPO, may conduct discussions with a bidder or offeror to determine in greater detail the bidder's or offeror's qualifications, to explore with the bidder or offeror its ability to supply the specific supply or service, and the bidder's or offeror's proposed method of performance.
Unacceptable Unpriced Technical Offer

When the SPO determines a bidder's or offeror's unpriced technical offer does not meet criteria, the offer shall be rejected.

e) Procedure for Step Two of Multi-Step Sealed Bidding or Multi-Step Sealed Proposals

Initiation. Upon the completion of phase one, the SPO or designee shall either:

A) open priced bids and offers submitted in step one (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable. Price must be submitted in a separate envelope in the bid or proposal package and not mentioned elsewhere in the bid or proposal package; or

B) if priced bids or offers have not been submitted, invite each acceptable bidder or offeror to submit a sealed priced bid or offer.

Conduct. Phase two shall be conducted as any other competitive sealed bid procurement.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2013 Reverse Auctions

a) CPO-GS Authorization

A State agency may procure supplies or services (other than for professional and artistic services, telecommunications services, communication services, information services, and construction projects, including design professional services) through means of a reverse auction if the CPO-GS has made a determination that use of a reverse auction is in the best interests of the State. The CPO-GS shall publish in the Bulletin that bids will be received in an electronic auction manner as part of the notice of Invitation for Bids.

b) Reverse Auction Process

The CPO-GS or designee shall conduct a reverse auction through a two-step IFB process consisting of bid prequalification and price submission.

Prequalification

A) An invitation to prequalify shall be issued requesting the submission of information addressing vendor qualifications and responsibility; vendor specifications and/or samples; confirming acceptance of auction procedures; and requiring agreement to accept a contract using State contract terms and conditions if selected for award in the price only part of the process. No pricing information shall be submitted or considered in the prequalification step of the process.

B) The prequalification bids shall not be opened publicly, but the opening shall be recorded and witnessed by a State witness. Prequalification information will be evaluated on a pass/fail basis and vendors will be notified directly as to whether they met or did not meet the prequalification criteria.

Price

A) An IFB shall be sent to those vendors who passed prequalification. The response shall be limited to the submission of prices in the form specified in the IFB. The IFB shall establish any minimum bid increments.

B) Prices shall be submitted electronically. The CPO-GS shall cause the prices to be displayed as submitted, but the prices as displayed will not identify the name of the vendor. Vendors may reduce their price at any time during the active period of the auction.

C) When the low price is substantially lower than other prices submitted, the CPO-GS or designee may request that the bidder confirm the price and, if an error has occurred, may allow withdrawal in accordance with the Code and this Part.

c) Technical Difficulties

The auction time may be extended or rescheduled by the CPO-GS or designee if technical difficulties at the State site do not allow the auction to be conducted as intended. Participants will be notified of an extension or a rescheduling.
If technical difficulties occur at a vendor site such that the vendor cannot electronically submit a price, the CPO-GS or designee may accept a fax and will then enter the price for the vendor. Faxed prices will not be accepted later than 5 minutes before the originally scheduled end of the auction or if the faxed prices are higher than the then-existing low price.

d) Reverse Auction Training

The CPO-GS or designee may provide instructions or training to prequalified vendors regarding auction procedures and technology.

e) Disclosure of Reverse Auction Information

After the end of the reverse auction, the names of those who participated in either step of the process shall be disclosed and the final price submitted by each participant.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2015 Competitive Sealed Proposals

a) Competitive Sealed Proposals may be used whenever permitted by the Code and as described in this Part.

b) Competitive Sealed Proposals may be used on a case-by-case basis when it is determined by the SPO that competitive sealed bidding is either not practicable or advantageous. The Competitive Sealed Proposal method differs from competitive sealed bidding in two ways: it permits discussions with competing offerors and changes in their proposals, including price and it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract. Factors to be considered in determining whether competitive sealed bidding is either not practical or advantageous include:

when evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, when the types of supplies or services may require the use of comparative, judgmental evaluations to evaluate them adequately, or when the type of need to be satisfied involves weighing aesthetic values to the extent that price is a secondary consideration;
whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;
whether offerors may need to be afforded the opportunity to revise their proposals, including price;
whether award may need to be based upon a comparative evaluation, as stated in the Request for Proposals, of differing price, quality, and contractual factors in order to determine the most advantageous offering to the State. Quality factors include technical and performance capability and the content of the technical proposal;
whether the primary consideration in determining award may not be price; and
if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State.

c) Content of the Request for Proposals

The RFP shall be prepared in accordance with Section 1.2010 (Competitive Sealed Bidding), including but not limited to:

all of the evaluation factors, including price, and their relative importance;
a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award;
a statement that revisions may be requested after discussions and best and final offers may be requested; and
a statement of when and how price should be submitted.

d) Subfactors and Scoring Tools

Establishment of subfactors, if any, and their relative importance must be finalized before publication of the RFP and made available for inspection and copying upon opening.
Numerical rating systems shall be used unless another scoring tool is authorized by the SPO. Any scoring tool shall reflect the evaluation criteria and ranking set forth in the RFP and any subfactors available at the opening.
The scoring tool used by the Evaluation Team must be finalized and approved by the SPO before the publication of the RFP and made available for inspection and copying upon opening.

e) Proposals shall be submitted in three parts: the first, covering price; the second, covering commitment to diversity; and the third, covering all other items. Price must be submitted separately in the proposal package and shall not be mentioned elsewhere in the proposal package. Each part of all proposals shall be evaluated and ranked independently of the other parts of all proposals. The results of the evaluation of all 3 parts shall be used in the ranking of proposals.

f) Receipt and Registration of Proposals

Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP. Opening shall be witnessed by a State employee or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that shall include the name of each offeror, the number of modifications received, if any, a description sufficient to identify the supply or service item offered, and a notation that the package contains a price proposal. The record of proposals shall be open to public inspection after award of the contract.
Proposals and modifications shall be opened in a manner to avoid disclosing contents to other offerors.

A) Only State personnel and contractual agents authorized by the SPO may review the proposals prior to award. Other than information that was recorded, read and made publicly available at the opening of the proposals, the State agency conducting the procurement shall not disclose any information contained in the offer outside of persons authorized by the SPO, identified State agency personnel, or others specifically authorized by the CPO-GS or SPO, until after the award of the proposed contract has been posted to the Bulletin. This does not restrict the disclosure of information to, or receipt by, State agency personnel identified by the State agency head or the chief executive officer of a board or commission to receive the information. The SPO may require confidentiality and conflict statements from those persons identified by the agency head or the chief executive officer to receive the information.

B) The agency head or chief executive officer may identify:

i) State employees who have primary responsibility for the procurement;

ii) State employees who exercise experience or expertise in the subject matter of the particular procurement in the normal course of business and as part of official responsibilities;

iii) State employees who exercise oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities.

g) Evaluation of Proposals

Prior to evaluation, an evaluation team kick-off meeting must be held. The purpose of that meeting is to provide the evaluation team with information regarding the evaluation process, including but not limited to conducting the evaluation with fairness and integrity, maintaining confidentiality, and discussing any possible conflicts of interest of evaluation team members. The SPO and all evaluation team members must attend the meeting. Attendance may be in person, by conference call, or by videoconference call.
Evaluation. The evaluation shall be based solely on the evaluation factors set forth in the RFP, except as communicated in advance to each proposer with opportunity to make necessary adjustments to the proposal.
The first part shall be evaluated and ranked independent of the second part of all proposals. Each member of the evaluation team must evaluate the first part individually.
After completion of the individual evaluations, the SPO shall determine whether the evaluation team should meet to confirm the individual scores. Factors the SPO should consider in determining whether the evaluation team should meet include whether there is a significant or substantial variance of scores, divergent scoring comments, or other information that suggests the need for further discussion. Notes regarding the meeting are required only if there are changes to individual scores.
SPO has the right to attend all evaluation team meetings.
The price proposal shall be opened in the presence of a State witness and may be distributed to the appropriate evaluators.
Commitment to Diversity. Factors to be considered in the award of these commitment to diversity points may include, but are not limited to:

A) Whether or how well the offeror, on the solicitation being evaluated, met the goal of contracting or subcontracting with businesses owned by women, minorities, or persons with disabilities;

B) Whether the offeror, on the solicitation being evaluated, assisted businesses owned by women, minorities, or persons with disabilities in obtaining lines of credit, insurance, necessary equipment, supplies, materials, or related assistance or services;

C) The percentage of prior year revenues of the offeror that involves businesses owned by women, minorities, or person with disabilities;

D) Whether the offeror has a written supplier diversity program, including, but not limited to, the use of diverse vendors in the supply chain and a training or mentoring program with businesses owned by women, minorities, or persons with disabilities; and

E) The percentage of members of the offeror's governing board, senior executives, and managers who are women, minorities, or persons with disabilities.

h) Proposal Discussions and Best and Final Offers with Responsive and Responsible Individual Offerors

Discussions may be held with responsible offerors whose offers are reasonably susceptible of being selected for award. All responsible offerors are reasonably susceptible of being selected for award unless a point threshold is established in the RFP, in which event, only responsible offerors who meet the set point threshold are reasonably susceptible to being selected for award. The purpose of discussions is to:

A) clarify an offer to ensure responsiveness to the State's requirements; and

B) facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the RFP.

Conduct of Discussions. Offerors reasonably susceptible to being selected for award shall be accorded fair and equal treatment with respect to any opportunity for discussions and clarifications of proposals. Discussions may be conducted by the State agency, in consultation with the SPO, with vendors reasonably susceptible of being awarded a contract based on qualifications and price. If during discussions it is determined there is a need for substantial revision of, or change to, the RFP, the RFP shall be cancelled and may be resolicited to incorporate the clarification or change. Auction techniques (revealing one offeror's price to another) and disclosure of any information from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.
Best and Final Offers. The State agency, with the approval of the SPO, may request best and final offers from those offerors deemed reasonably susceptible of being selected for award. Best and final offers shall be submitted by a specified date and time. The State agency, with the approval of the SPO, may conduct additional discussions or require another submission of best and final offers. The scope of the best and final offer shall be defined by the State agency with the approval of the SPO. The primary objective of best and final offers is to maximize the State's ability to obtain best value, based on the requirements and the evaluation factors set forth in the solicitation. If an offeror does not submit either a notice of withdrawal or another best and final offer, the offeror's immediately previous offer will be construed as its best and final offer.

i) Award

After completion of the evaluation, if board, commission, or authority approval of a contract award is necessary, the State agency may have separate discussions with individual board, commission, or authority members to obtain each individual board, commission or authority member's approval of the award prior to publishing the award in the Bulletin.
An award shall be made by the SPO pursuant to a written determination showing the basis on which the award was found to be most advantageous to the State, taking into consideration price and evaluation factors set forth in the RFP. An award made to the highest scoring vendor is presumed to be most advantageous to the State, taking into consideration evaluation factors set forth in the RFP, including price. The contract file shall contain the basis on which the award is made.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2020 Small Purchase Limits

a) Application

Individual procurements of $100,000 or less for supplies or services may be made without notice or competition. These small purchase maximums shall be subject to the annual cost of living increases set forth in subsection (a)(3).
Procurements for construction and construction related services of $100,000 or less, or as increased to reflect increases in the consumer price index as determined by the CPO-GS.
Each April, the CPO-GS will determine the CPI adjustment to the small purchase thresholds applicable for the next fiscal year. If the CPI is greater than zero, the thresholds identified in Section 20-20(a) of the Code will be reduced in an amount that, with the CPI increase, would result in the small purchase thresholds remaining as stated in subsection (a)(1). By July 1, 2019 and every five years thereafter, the CPO-GS will review the small purchase thresholds to determine if a modification to the thresholds is needed. If a modification is needed, the CPO-GS will consult with the PPB.

b) Determination of Small Purchase Status

In determining whether a contract is under the small purchase limit, the stated price or value, as applicable, of the supplies or services plus any optional supplies and services, determined in good faith, shall be utilized. When the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a 12 month period.
If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not to exceed limit applicable to the type of procurement (see subsection (a)).
If, after signing the contract, the actual cost of completing the contract is determined to exceed the small purchase amount, and the SPO determines that a supplemental procurement is not economically feasible or practicable because of the immediacy of the State agency's needs or other circumstances, the SPO must follow the procedures for sole source or emergency procurement, whichever is applicable, to complete the contract.

c) The CPO-GS may establish policies and procedures to manage the use of the small purchase method of source selection. The SPO may establish additional policies and procedures applicable to State agencies under the SPO's jurisdiction.

d) If there is a repetitive need for small procurements of the same type, the State agency shall notify the SPO who shall consider whether issuing a competitive sealed bid or proposal for procurement of those needs is in the best interests of the State.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2025 Sole Source or Sole Economically Feasible Source Procurement

a) Application

The provisions of this Part apply to procurement from a sole source or sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement is within the limit authorized in Section 1.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 1.2030 (Emergency Procurements), in which case those other procedures may be used.

b) Conditions for Use of Sole Source or Sole Economically Feasible Procurement

A sole source procurement is permissible when a requirement is available from only a single supplier. A sole economically feasible procurement is permissible when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one vendor authorized to provide that item. The following are examples of circumstances that could necessitate sole or sole economically feasible source procurement (this list is not exhaustive):

compatibility of equipment, accessories, replacement parts or service is a paramount consideration;
items are needed for trial use or testing of that specific product or service;
item is for commercial resale;
non-competitive public utility services;
item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;
media for advertising;
art, entertainment services or athletic events;
radio and television broadcast rights;
procurements related to participation in educational, professional, research, public service or athletic activities of organizations of which the State agency is a member. These procurements may include, but are not limited to, dues and membership fees, travel and lodging and facility usage fees;
federal or State grant requires contract with named vendor;
items required by franchise agreements; and
items that are required for research and no other source is able to meet the researcher's documented need.

c) Sole Source Determination

The determination as to whether a procurement shall be made as a sole source or sole economically feasible source procurement shall be made by the SPO, based on a request made by a State agency. The request shall be in writing on a form prescribed by the PPB and shall include the basis for the sole source or sole economically feasible source determination. Prior to authorizing the State agency to enter into a contract based on the sole source or sole economically feasible source request, the CPO-GS shall offer a public hearing to be held and make a final determination as required by Section 20-25(a) of the Code. Any request for hearing must be made at least 5 calendar days prior to the date of the scheduled hearing. If no request for a hearing is made, the hearing will be cancelled. The procurement may proceed on a sole source or sole economically feasible source basis only after the procurement method is approved by the CPO-GS.

d) Hearing

Any hearing required shall be conducted in accordance with Subpart V.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2030 Emergency Procurements

a) Authority to Make Emergency Procurements

The provisions of this Part apply to every procurement over the small purchase limit set in Section 1.2020 (Small Purchase Limits) made under emergency conditions. The SPO, or a State agency through written designation, shall have the authority to make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods.

b) Emergency Conditions

A statutory emergency condition exists:

A) if there exists a threat to public health or public safety;

B) when immediate expenditure is needed for repairs to State property in order to protect against further loss or damage to State property;

C) to prevent or minimize serious disruption in critical State services that affect health, safety, or collection of substantial State revenues; or

D) to ensure the integrity of State records.

c) Quick Purchase

The emergency method of source selection is allowed in additional situations. These include, but are not limited to:

protect the health and safety of any person;
items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a "quick purchase" immediately to take advantage of the availability and price;
rare items, such as articles of historical value or art collections, that are available for a limited time;
the opportunity to obtain entertainment, speakers and athletic and other events or performances is available for a limited time;
immediate action is necessary to avoid lapsing or loss of federal or donated funds.

d) Scope of Emergency Conditions

Emergency procurement shall be limited to the supplies, services, construction or other items necessary to meet the emergency need. In certain situations the purchase to meet the immediate need (i.e., the temporary solution) may, by necessity, also be the permanent solution. In this event, the notice shall describe that circumstance.

e) Source Selection Methods

Any method of source selection, whether or not identified in this Part, may be used to conduct the procurement in emergency situations provided that, whenever practical, existing State contracts shall be utilized and competitive sources shall be considered if practical. The procedure used shall be selected to assure that the required items are procured in time to meet the emergency. Such competition as is practicable shall be obtained.

f) Determination and Record of Emergency Procurement

Determination. The SPO shall make a written determination stating the basis for an emergency procurement and for the selection of the particular vendor. Documentation of efforts to obtain competition shall be made part of the procurement file. These determinations shall be kept in the contract file.
Emergency Contract Award

A) For purposes of an emergency, an emergency contract is awarded on the earliest of the date:

i) a State agency communicates to a vendor to start work;

ii) publication on the Bulletin identifying the selected vendor; or

iii) the contract is signed by both parties.

B) Documentation of the contract award date shall be part of the procurement file.

Record. In a manner acceptable to the receiving parties, the CPO-GS shall designate the method of filing statements of each emergency procurement with the PPB and Auditor General. An affidavit of each emergency procurement (including extensions of emergency contracts beyond 90 days) shall be filed by the SPO with the CPO-GS, PPB and the Auditor General within 10 days after the contract is awarded and shall include the following information:

A) the vendor's name;

B) the amount and type of the contract (if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known);

C) a description of what the vendor will do or provide;

D) the reasons for using the emergency method of source selection.

Notice of the Emergency Procurement

Notice of the emergency procurement shall be published in the Bulletin by the SPO as specified in Sections 15-25(c) and 20-30 of the Code no later than 5 days after the contract is awarded and shall include a description of the procurement, the reasons for the emergency procurement and the total cost. When only an estimate of the total cost is known at the time of publication, the estimate shall be identified as an estimate and published. When the total cost is determined, it shall also be published in like manner before the 10th day of the next succeeding month.

The State agency shall be responsible for preparing the filings required in Section 20-30 of the Code.

g) Duration of Emergency Contract

The term of the temporary solution emergency contract shall be limited to the time reasonably needed for a competitive procurement for the permanent solution, not to exceed 90 days.
A temporary solution emergency contract may be extended beyond 90 days if the CPO-GS determines additional time is necessary and the contract scope and duration are limited to the emergency. Prior to execution of the extension, a public hearing shall be held at which any person may present testimony.
Notice of Extension

Notice of intent to extend an emergency contract shall be published in the Bulletin no later than 14 days prior to a public hearing. Notice shall include at least a description of the need for the emergency extension, the contractor, and, if applicable, the date, time and location of the public hearing.

The initial determination as to whether an emergency shall be extended for a term longer than 90 days shall be made by an SPO in the form of an extension request submitted to the CPO-GS. The request shall be in writing and shall include the justification for the extension. Prior to execution of the extension, a public hearing shall be held at which any person may present testimony and the CPO-GS shall make a final determination as required by Section 20-30(a), (b) and (c) of the Code. The term noticed in the Bulletin of the proposed extension may be shortened or lengthened to a term determined to be in the best interest of the State, as determined by the CPO-GS. The final determination shall be published in the Bulletin.

h) Contract Extension Hearing

The hearing shall be conducted in accordance with Subpart V.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2035 Competitive Selection Procedures for Professional and Artistic Services

a) Application

The provisions of this Section apply to every procurement of professional and artistic (P&A) services, except those subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and except as provided in subsection (e).
"Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 500/1-15.60].

b) P&A services are further defined as follows:

"Qualified by education" means the individual who would perform the services must have obtained the level of education specified in the Request for Proposals.
"Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the Request for Proposals.
"Qualified by technical ability" means the individual who would perform the services must demonstrate a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the Request for Proposals.
An essential element distinguishing P&A services from other services is confidence, trust, and belief in not only the ability, but the talent, of the individual performing the service.
P&A services are primarily for intellectual or creative skills. Contracts for services primarily involving manual skills or labor are not P&A services contracts.
If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.
When a State agency requires services that meet the requirements of this subsection (b), the competitive selection procedures described in this Section must be followed. Services that do not meet the requirements of this Section must be procured in accordance with other methods of source selection authorized by the Code and this Part.

c) The SPO may determine whether the factors identified in subsection (b), when applied to particular services to be procured, must be procured as P&A under these competitive selection procedures or as services that are subject to one of the other methods of source selection authorized by the Code and this Part.

d) Architect, engineering and land surveying services shall be procured pursuant to the procedures of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act. These procurements are not subject to the procedures for other professional services established in the Code or this Part.

e) Except as authorized under Section 20-25 (Sole Source Procurements) or Section 20-30 (Emergency Purchases) of the Code, these competitive selection procedures shall be used for all procurements of P&A services of $100,000 or more.

f) Request for Proposals

P&A services shall be procured using an RFP.

Contents. The RFP shall be in the form specified by the CPO-GS and shall contain at least the following information:

A) the type of services required;

B) a description of the work involved;

C) an estimate of when and for how long the services will be required;

D) the type of contract to be used;

E) a date by which proposals for the performance of the services shall be submitted;

F) a statement of the minimum information that the proposal shall contain, which may, by way of example, include:

i) the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

ii) if deemed relevant, the age of the offeror's business and average number of employees over a previous period of time, as specified in the RFP;

iii) the abilities, qualifications, and experience of all persons who would be assigned to provide the required services;

iv) a listing of other contracts under which services similar in scope, size or discipline to the required services were performed or undertaken within a previous period of time, as specified in the RFP;

v) a plan, giving as much detail as is practical, explaining how the services will be performed;

G) price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package); and

H) the factors to be used in the evaluation and selection process and their relative importance.

Evaluation Factors, Evaluation Subfactors, and Scoring Tools

A) The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum factors are:

i) the plan for performing the required services;

ii) ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services, and the qualifications and abilities of personnel proposed to be assigned to perform the services;

iii) the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

iv) a record of past performance of similar work.

B) Establishment of subfactors, if any, and their relative importance must be finalized before publication of the RFP and made available for inspection and copying upon opening.

C) Numerical rating systems shall be used unless another scoring tool is authorized by the SPO. Any scoring tool shall reflect the evaluation criteria and ranking set forth in the P&A RFP and any subfactors available at the opening.

D) The scoring tool used by the Evaluation Team must be finalized and approved by the SPO before publication of the RFP and made available for inspection and copying upon opening.

g) Proposals shall be submitted in three parts: the first, covering price; the second, covering commitment to diversity; and the third, covering all other items. Price must be submitted separately in the proposal package and shall not be mentioned elsewhere in the proposal package. Each part of all proposals shall be evaluated and ranked independently of the other parts of all proposals. The results of the evaluation of all 3 parts shall be used in the ranking of proposals.

h) Receipt and Registration of Proposals

Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP.
Opening shall be witnessed by a State employee or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that shall include the name of each offeror, the number of modifications received, if any, a description sufficient to identify the supply or service item offered, and a notation that the package contains a price proposal. The record of proposals shall be open to public inspection after award of the contract.
Proposals and modifications shall be opened in a manner designed to avoid disclosing contents to other offerors. Other than information that was recorded, read and made publicly available at the opening of the proposals, the State agency conducting the procurement shall not disclose any information contained in the offer outside of the persons authorized by the SPO until after award of the proposed contract has been posted to the Bulletin. This does not restrict the disclosure of information to board or authority members or to commissioners of a State agency. Only State personnel and contractual agents authorized by the SPO may review the proposals prior to award. In authorizing State personnel under this Section, the SPO may require confidentiality and conflict of interest statements be executed. The SPO may provide blanket authorization to:

A) State employees who have primary responsibility for the procurement;

B) State employees who exercise experience or expertise in the subject matter of the particular procurement in the normal course of business and as part of official responsibilities;

C) State employees who exercise oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities.

i) Evaluation of P&A Proposals

Prior to evaluation, an evaluation team kick-off meeting must be held. The purpose of that meeting is to provide the evaluation team with information regarding the evaluation process, including but not limited to conducting the evaluation with fairness and integrity, maintaining confidentiality, and discussing any possible conflicts of interest of evaluation team members. The SPO and all evaluation team members must attend the meeting. Attendance may be in person, by conference call, or by videoconference call.
The evaluation shall be based solely on the evaluation factors set forth in the RFP, except as communicated in advance to each offeror with the opportunity to make necessary adjustments to the proposal.
Each member of the evaluation team must evaluate the first part individually.
After completion of the individual evaluations, the SPO shall determine whether the evaluation team should meet to confirm the individual scores. Factors the SPO should consider in determining whether the evaluation team should meet include whether there is a significant or substantial variance of scores, divergent scoring comments, or other information that suggests the need for further discussion.
Price will not be evaluated until ranking of all proposals and identification of the most qualified vendor.

j) Discussions with Offerors

Discussions Permissible. The CPO-GS, SPO or State employee with the approval of the SPO on behalf of the CPO-GS may conduct discussions with any offeror to:

A) determine in greater detail the offeror's qualifications; and

B) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach. The SPO or designee may allow changes to the proposal based on those discussions.

No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors, and the State agency conducting the procurement shall not disclose any information contained in any proposals outside of contracting officers, identified State agency personnel or others specifically authorized by the CPO-GS or SPO until after the award of the proposed contract has been posted to the Bulletin. This does not restrict the disclosure of information to, or receipt by, State agency personnel identified by the State agency head or the chief executive officer of a board or commission to receive the information. The SPO may require confidentiality and conflict statements from those persons identified by the agency head or the chief executive officer to receive the information. The agency head or chief executive officer may identify:

A) State employees who have primary responsibility for the procurement;

B) State employees who exercise experience or expertise in the subject matter of the particular procurement in the normal course of business and as part of official responsibilities;

C) State employees who exercise oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities.

k) Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation and discussion, the SPO shall rank the acceptable offerors in the order of their respective qualifications.

l) Evaluation of Pricing Data

Pricing submitted for all acceptable proposals timely submitted shall be opened and ranked.

If the low price is submitted by the most qualified vendor, the SPO may award to that vendor.
If the price of the best qualified vendor exceeds $100,000, the SPO, but not a designee, must state why a vendor other than the low priced vendor was selected and that determination shall be published in the Bulletin.

m) Negotiation and Award of Contract

General. The purchasing agency, in consultation with the SPO, shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The purchasing agency, in consultation with the SPO, may, in the interest of efficiency, negotiate with the next highest ranked vendor, while negotiating with the best qualified vendor.
Elements of Negotiation. At a minimum, contract negotiations shall be directed toward:

A) making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

B) determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services and the scope, complexity, and nature of those services.

Successful Negotiation of Contract with Best Qualified Offeror

A) If compensation, contract requirements and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is canceled.

B) Compensation must be determined in writing to be fair and reasonable. Fair and reasonable compensation shall be determined by the purchasing agency, in consultation with SPO, based on the circumstances of the particular procurement, including but not limited to the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, other available pricing information and the State agency's identified budget.

C) Contracts entered into under this Section shall provide:

i) The duration of the contract, with a schedule for delivery when applicable;

ii) The method for charging and measuring cost (hourly, per day, etc.);

iii) The rate of renumeration; and

iv) The maximum price.

Failure to Successfully Negotiate Contract with Best Qualified Offeror

A) If compensation, contract requirements or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons shall be placed in the file. The purchasing agency, in consultation with the SPO, shall advise such offeror of the termination of negotiations.

B) Upon failure to successfully negotiate a contract with the best qualified offeror, the purchasing agency, in consultation with the SPO, may enter into negotiations with the next most qualified offeror.

n) Multiple Awards

The purchasing agency, in consultation with the SPO, may enter into negotiations with the next most qualified vendor or vendors when the purchasing agency has a need that requires multiple vendors under contract.

o) Notice of Award

After completion of the evaluation, if board, commission, or authority approval of a contract award is necessary, the State agency may have separate discussions with individual board, commission, or authority members to obtain each individual board, commission or authority member's approval of the award prior to publishing the award in the Bulletin.
An award shall be made by the SPO pursuant to a written determination showing the basis on which the award was found to be most advantageous to the State, taking into consideration price and evaluation factors set forth in the RFP. An award made to the highest scoring vendor is presumed to be most advantageous to the State, taking into consideration evaluation factors set forth in the RFP, including price. The contract file shall contain the basis on which the award is made.

p) Prequalification

Prequalification of P&A vendors shall not be used to bar or prevent an otherwise qualified person from responding to a request for proposal for P&A services.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2036 Other Methods of Source Selection and Contract Formation

a) Split Award

An award of a definite quantity requirement may be split between bidders or offerors if necessary to obtain the total quantity needed. Each portion shall be for a definite quantity and the sum of the portions shall be the total definite quantity required.

b) Multiple Award

A multiple award may be made for an indefinite quantity solicitation when award to two or more bidders or offerors for similar products or services is necessary for adequate delivery or service.
If a multiple award is anticipated, the solicitation shall state this fact as well as the criteria for award.
In a multiple award situation, one vendor shall be designated as the primary recipient of orders, unless otherwise provided in this Section. The other awardees may receive orders in the event the primary vendor is unable to deliver or for other reasons as determined by the SPO.
The State agency shall reserve the right to take bids separately if a particular quantity requirement arises that exceeds its normal requirement or an amount specified in the contract.
Multiple Award with Set Rate

A) Notwithstanding anything to the contrary in this Part, the CPO-GS but not a designee, may, on a case-by-case basis, authorize an appropriate purchasing agency to issue a competitive solicitation and to enter into contracts with multiple vendors under a process that provides for prequalification, agreement to perform at a set rate, and final selection based on random and equitable distribution of work among qualified vendors.

B) The CPO-GS may authorize use of this source selection procedure upon a determination in writing that use of the methods of source selection set forth in Article 20 of the Code is either not practicable or advantageous because, for example, the program needs of State agencies cannot reasonably be met within the normal procurement timeframes, or that the type and variety of State agency needs are such that a single award will not assure the needed availability or diversity of vendors.

C) Vendors shall be prequalified once per fiscal year, or as often as necessary, through use of a competitive sealed proposal. The minimum qualifications (including performance standards and agreement to provide services at a set rate determined by the State), any desirable additional qualifications, and the method of obtaining and setting rates shall be stated in the solicitation advertised in the Bulletin. Those vendors meeting minimum qualifications shall be offered non-exclusive indefinite quantity master contracts against which a procuring agency may later place one or more orders on an as needed basis in accordance with the vendor selection procedure set forth in subsection (b)(5)(F). Implementing Section 45-45 of the Code and subsection (b)(5)(F) of this Section, the solicitation shall contain a provision alerting vendors that the random selection process used to meet a specific using agency's needs may be limited to those master contract holders who qualify as small businesses.

D) The purchasing agency shall establish the set rate by one of the following methods. The lowest rate identified will not necessarily be the set rate, but will be a consideration in determining the set rate.

i) Set in the solicitation the rate that vendors must agree to bill. In general, this rate shall be the lowest rate at which a sufficient number of vendors are ready, willing and able to meet the State's needs. The solicitation shall show the selected purchasing agency has conducted sufficient research (such as reviewing past State contract rates, reference to GSA or other governmental contract rates, or private sector rates determined by internal or industry expert surveys) that the public can have confidence the rate provides overall advantage to the State.

ii) Require as part of the solicitation that vendors submit rates (prices), including disclosable rates, and inform them the selected purchasing agency will use this rate information and additional rate information received through use of the best and final process, from other contracts and from research to establish the set rate that vendors must bill.

E) Vendors not willing to agree to bill at the set rate may be rejected or may have their contracts restricted to use in special circumstances approved by the CPO-GS.

F) Using agency needs will be met by the selected purchasing agency selecting a master contract holder on a random basis. If the using agency determines that it has specific programmatic needs that require additional qualifications (e.g., specialized programming knowledge or specific educational requirements) or conditions (e.g., geographic limitations) or State policy considerations (e.g., promotion of small business), such that random vendor selection from among all master contract holders would not meet its needs, the using agency may submit an alternate selection request to the CPO-GS. This request shall set forth all reasons, including the additional qualifications or conditions, why a random vendor selection would not reasonably meet the needs of the agency, or the policy of the State. If at least 3 of the master contract holders meet those additional qualifications or conditions, the selected purchasing agency shall conduct a random selection limited to that subset of the master contract holders. If the using agency's request does not show a need for additional qualifications or if there are not 3 master contract holders with the needed qualifications, the using agency may not utilize the method of source selection set forth in this Section.

G) In order to ensure the continued availability of the set of master contract holders, all potential orders shall be monitored by the selected purchasing agency to ensure the equitable distribution of work and that no single vendor has an unwarranted disproportionate share of the available work. The selected purchasing agency shall, to avoid a disproportionate distribution of work, remove a vendor from consideration for a period of time sufficient to minimize dollar value discrepancies among vendors. In addition, any vendor so removed may be reinstated for consideration to meet a particular using agency's need if only 3 or fewer otherwise eligible vendors are available to meet the using agency's need.

H) The selected purchasing agency shall conduct the random selection using a drawing, mechanical device or software driven selection. The specific process used shall ensure that final selection is influenced only by chance, after taking into consideration, as applicable and as allowed in this Part, the policy of equitable distribution, use of small businesses, and specific requests from agencies to meet special needs.

I) It shall be the affirmative obligation of each vendor with a master contract to update information provided to the State regarding its continued ability to provide the contracted service. Master contracts may provide that vendors who cannot perform the required services when contacted and who have not provided the updated information may be taken out of consideration for orders for a period of time, including until the next prequalification.

J) The procurement file shall contain justification for the selection of the master contract vendors and each selection to meet the particular need of a using agency including the determination in subsection (b)(5)(B); the research papers, reports, contract rates and internal or industry expert surveys, "additional rate information" and identification of "other contracts and research" in subsections (b)(5)(D)(i) and (ii); the alternate selection documents required by subsection (b)(5)(F), the 3 or more master contract holders for the alternate random selection in subsection (b)(5)(F) and updated information required of contractors pursuant to subsection (b)(5)(I). The selected purchasing agency shall publish the names of the vendors selected to receive master contracts and the name of each vendor selected to receive an order to meet the using agency's particular need.

Geographical

A multiple award may be made to a vendor based on geographical locations in the State. A vendor may be granted multiple awards for a particular geographical location, based on a determination, in writing, that:

A) use of the methods of source selection set forth in Article 20 of the Code is not practicable or advantageous because, for example, the program needs of State agencies cannot reasonably be met within the normal procurement timeframes; or

B) the type and variety of State agency needs are such that a single award will not assure the needed availability or diversity of vendors.

c) Term and Condition Contracts

A term and condition contract contains agreed contractual terms and conditions established for the convenience of the parties to be used in conjunction with a subsequent procurement and processed in accordance with the requirements of the Code and this Part. A term and condition contract is not a procurement. It creates no obligation on the part of the State to procure from the vendor, nor does it create an authorization for a State agency to order based on that term and condition contract, except as provided in subsection (c)(2).
Orders may be placed against term and condition contracts without use of any method of source selection specified in the Code for convenience of processing sole source, emergency or small procurements.

d) Auction

Purchases may be made at auction in accordance with the procedural requirements applicable to the particular auction. Notice and competition is not required and the amount payable shall be the amount bid and accepted plus any required buyer's premium. Individual purchases at auction exceeding the small purchase maximum shall be posted in the Bulletin.

e) Federal Requirements

The State agency, in consultation with the SPO, for any State agency receiving federal aid funds, grants or loans or otherwise subject to federal entity requirements may conduct procurements in accordance with federal requirements that are necessary to receive or maintain those federal aid funds, grants or loans or to remain in compliance with federal requirements.

f) Foreign Country Procurement

Procurements to meet the needs of State agency offices located in foreign countries shall comply with the Code and this Part whenever practicable. The State agency shall maintain a record of the action taken and provide the record to the SPO.

g) Donations

When a procurement will have the majority of funding from a donation, the terms of which require use of particular procurement or contracting procedures, the SPO may follow those procedures, but shall follow the Code and this Part whenever practicable.
Donations may be acknowledged by the donee agency in a manner appropriate to the type of donation and the program activity associated with the donation. Acknowledgment may include, but need not be limited to, public announcement at the event or in donee agency publications, signage at the building, or inviting the donor to attend the program activity associated with the donation.

h) Broker Method for Obtaining Certain Insurance Coverages

Notwithstanding anything to the contrary in this Part, the CPO-GS, but not a designee, may, on a case-by-case basis, authorize the use of this broker method to obtain insurance coverages when use of the methods of source selection set forth in Article 20 of the Code is not practicable or advantageous because, for example:

A) Due to the structure of the insurance industry, the types of insurance coverages needed cannot reasonably be obtained from "direct writers" who would provide quotes directly to State agencies in a bid or RFP process; or

B) The process of obtaining quotes for needed insurance coverages cannot be accomplished within the normal procurement timeframes.

If the CPO-GS determines that this broker method is preferable for designated coverages, a two-part procurement process will be used to obtain the coverages.

A) A broker will be selected in accordance with the RFP process authorized by Section 20-15, and the resulting contract will be subject to all requirements of the Code. The broker contract will be issued for a term of years, and during the term of the contract the broker will assist the State agency in obtaining coverages as set forth in subsection (h)(2)(B) as well as providing customary services such as issuing certificates of insurance and servicing policies.

B) The broker will assist the State agency by serving as broker of record in obtaining insurance coverages through the industry process of going to market to obtain quotes. The State agency will use an evaluation team to test the market for competitiveness, review the quotes, and select the insurers and products best fitting its needs. The solicitation, evaluation and selection process will be documented in writing and become a part of the public procurement file. The insurance coverages obtained, the term of coverage, and the premiums charged will be posted on the Bulletin as attachments to the broker award notice.

i) Competitive Procurements from a Pre-Qualified Pool

Conditions for Use. When it may be more efficient or more appropriate, based on the nature of the supply or service, the CPO-GS or a State agency may, with the approval of the SPO, issue a solicitation to identify vendors who meet the criteria, establish a pool of qualified vendors, and then select from that pool as needs arise. Reasons for use of this alternative include, but are not limited to, the need for information technology or telecommunications supplies or services.
Request for Qualifications. Qualifications shall be solicited by seeking statements of the qualifications from vendors to determine their inclusion in a prequalified pool. The qualifications submitted to the prequalified pool shall describe the specific supplies or services the CPO-GS or State agency require that the potential vendor can fulfill.
Public Notice. Public notice of the Request for Qualifications shall be published in the Bulletin at least 14 days before opening of qualifications.
Receipt and Registration of Qualifications

A) Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP. Opening shall be witnessed by a State employee or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that includes the name of each offeror, the number of modifications received, if any, a description sufficient to identify the supply or service item offered, and a notation that the package contains a price proposal. The record of proposals shall be open to public inspection after award of the contract.

B) Proposals and modifications shall be opened in a manner that avoids disclosing content to other offerors.

i) Only State personnel and contractual agents authorized by the SPO may review the proposals prior to award. Other than information that was recorded, read and made publicly available at the opening of the proposals, the State agency conducting the procurement shall not disclose any information contained in the offer outside of contracting officers, identified State agency personnel, or others specifically authorized by the CPO-GS or SPO until after the award of the proposed contract has been posted to the Bulletin. This does not restrict the disclosure of information to, or receipt by, State agency personnel identified by the State agency head (which includes the chief executive officer of a board or commission) to receive the information. The SPO may require confidentiality and conflict statements from those persons identified by the agency head to receive the information.

ii) The agency head may identify State employees who have primary responsibility for the procurement; State employees who exercise experience or expertise in the subject matter of the particular procurement in the normal course of business and as part of official responsibilities; and State employees who exercise oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities.

Evaluation Factors. The Request for Qualifications shall contain the factors and subfactors, if any, to be used in determining if a vendor is prequalified to provide the category of supplies or services. These factors and subfactors, if any, include, but are not limited to, responsibility, any necessary experience, any necessary technical knowledge, any required certification or accreditation, and financial stability.
Discussion with Responsible Vendors and Revisions of Qualifications. As provided in the Request for Qualifications, discussions may be conducted with responsible vendors who submit qualifications determined to be reasonably susceptible of being prequalified for clarifying and assuring full understanding of and responsiveness for prequalification. Those vendors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of qualifications. Revisions may be permitted after submission and before prequalification. In conducting discussions, there shall be no disclosure of any information derived from qualifications submitted by other vendors. If information is provided to any vendor by the State, it shall be provided to all vendors.
Prequalified Pool. A multiple award may be made for the prequalified pool when multiple vendors are prequalified in response to a Request for Qualifications. Vendors shall be prequalified in writing, taking into consideration the evaluation factors set forth in the Request for Qualifications. The procurement file shall contain the basis on which each vendor is determined to be prequalified.
Submissions to the Prequalified Pool. Each time the CPO-GS or State agency has a need for supplies or services from the prequalified pool, the CPO-GS or State agency shall provide to each member of the prequalified pool a document that describes in detail the supplies or services needed and the selection criteria the CPO-GS or State agency will use to make an award. The prequalified pool shall have at least 5 days to respond with a submission that includes the price or value for the supplies or services described in the proposal.
Discussion with the Prequalified Pool and Revisions to Quotation. As provided in the Request for Qualifications, the State's detail of supplies or services may be discussed with members of the prequalified pool to clarify and assure full understanding of, and responsiveness to, the request for the vendor submission. Each member of the prequalified pool shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted after submission and before award for obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competitors in the prequalified pool. If any other information is disclosed to any member of the prequalified pool, it shall be provided to all members of the prequalified pool.
Award. Award shall be made to the responsible prequalified member of the pool whose proposal is determined in writing to be the most advantageous to the State, taking into consideration the selection criteria set forth in the vendor's written submission to the prequalified pool. The procurement file shall contain the basis on which each award is made. If a vendor other than the lowest price or value vendor is awarded the contract, the CPO-GS or State agency shall publish in the Bulletin the reason for awarding to other than the lowest price or value vendor. Prequalification does not guarantee that the vendor will be awarded a contract.
Every request for procurement under this subsection (i) shall provide a method for allowing additional vendors to become part of the prequalified pool after its creation. Additions to the prequalified pool shall be made at least annually.
This Section shall not apply to a construction agency in the procurement of construction or construction-related materials.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2037 Tie Bids and Proposals

a) Tie bids or proposals are those from responsive and responsible vendors that are, in the case of bids, identical in price, and, in the case of proposals, identical in rank after evaluation.

b) Tie bids, proposals, or quotes will be resolved as follows:

If the tied vendors include only one Illinois resident vendor, the Illinois resident vendor shall be given the award. "Illinois resident vendor" has the meaning ascribed in Section 1.4510 (Resident Vendor Preference).
In all other situations, the award shall be made by lot unless the SPO determines that:

A) awarding to one of the vendors is in the State's best interest because, for example, that vendor is likely to be more reliable or responsive to the State's needs, based on past performance; provides a better quality of the supply or service; provides quicker delivery; or, in the case of proposals, because of a desire to take advantage of the lower price; or

B) splitting the award is in the State's best interest because of a need to ensure delivery of the supply or service, or is necessary or desirable to promote future competition, and provided the affected vendors agree to the split award.

c) Records

Records shall be made of all procurements on which the tie bids, proposals, or quotes are received, showing at least the following information:

The identification number of the solicitation;
A description of what was procured;
A listing of all bidders or offerors and the prices submitted;
The State agency personnel or SPO who flips a coin or draws the lot; and
The State agency personnel or SPO who witnesses the flip of the coin or the draw of the lot.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.2038 Modification or Withdrawal of Bids or Proposals

a) Modification or Withdrawal

A bidder or offeror may withdraw or modify a paper bid or proposal if notice of the withdrawal or modification is received by the SPO before the latest time specified for receipt of bids or proposals. Any modification or withdrawal of a paper bid or proposal, however, must be made in writing and received by the SPO prior to the scheduled bid or proposal opening. When time is of the essence, the SPO may agree to receive modifications or withdrawals conveyed by electronic mail or telephone. An originally signed written confirmation of a telephone modification or withdrawal shall be mailed or delivered by the bidder or offeror on the same day. Withdrawals of bids or proposals after bid or proposal opening will not ordinarily be permitted; however, in those cases in which the judgment of the SPO, based on clear and demonstrable evidence, the bidder or offeror has made a bona fide error in the preparation of the bid or proposal and that error will result in a substantial loss to the bidder or offeror, an exception may be made.

b) Minor informalities

A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State or to other bidders or offerors (i.e., the effect on price, quality, quantity, delivery or contractual conditions is negligible). The SPO shall waive these informalities or allow the bidder to correct them depending on which is in the best interest of the State. Minor informalities include insignificant mistakes that have an effect on price, quantity, quality, delivery or contractual conditions is negligible.

c) Documentation Required

When a paper bid or proposal is corrected or withdrawn, or correction or withdrawal is denied, a written determination shall be prepared by the SPO showing that relief was granted or denied in accordance with this Part.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2039 Mistakes

a) General

Corrections to bids, proposals or other procurement processes are allowed, but only to the extent not contrary to the best interest of the State or the fair treatment of other offerors.

b) Mistakes Discovered Before Opening

A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting the error in writing, or in person at the opening location, before the time and date set for opening.

c) Confirmation of Mistake After Opening

When the SPO knows or has reason to conclude that a mistake has been made, the SPO shall request the vendor to confirm the information. Situations in which confirmation should be requested include obvious or apparent errors on the face of the document or a price unreasonably lower than the others submitted. If the vendor alleges a mistake, the bid or proposal may be corrected or withdrawn if the conditions set forth in this Section, as applicable, are met.

d) Mistakes Discovered After Opening but Before Award

Minor Informalities

A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery or contractual conditions is negligible). The SPO shall waive these informalities or allow correction depending on which is in the best interest of the State. Examples of minor informalities as to form include the failure to:

A) return the number of signed copies required by the solicitation document;

B) acknowledge receipt of an amendment to the solicitation, but only if:

i) it is clear from the bid that the offeror received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on price, quantity, quality or delivery.

Mistakes in Which the Intended Correct Information Is Evident

If the mistake and the intended correct information are clearly evident on the face of the bid document, the information shall be corrected and the bid may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the solicitation document are typographical errors, errors in extending unit prices, transposition errors and arithmetical errors.

Mistakes in Which the Intended Correct Information Is Not Evident

The bid or proposal may be withdrawn if:

A) a mistake is clearly evident on the face of the bid or proposal document but the intended correct bid or proposal is not similarly evident; or

B) there is proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

e) During Discussions; Prior to Best and Final Offers

Once discussions are commenced with any offeror or after best and final offers are requested, an offeror may propose to correct any mistake, prior to the date set for conclusion of discussions or for receipt of best and final offers, provided the correction would not be contrary to the fair and equal treatment of other offerors.

f) Mistakes Discovered After Award

Mistakes shall not be corrected after award of the contract except when the SPO finds it would be unconscionable (e.g., if the mistake resulted in a windfall to the State) not to allow the mistake to be corrected.

g) Documentation Required

The reason for allowing correction or withdrawal of bids or proposals shall be made part of the procurement file and shall be available for public inspection.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.2040 Cancellation of Solicitations and Contract Awards; Rejection of Bids or Proposals

a) Policy

Any solicitation may be cancelled before or after opening when the SPO determines cancellation to be in the State's best interest. An SPO may request that a State agency provide any information to assist the SPO in reaching a determination of whether cancellation is in the State's best interest. Nothing shall compel the award of a contract.

b) Cancellation of Solicitation; Rejection of All Bids or Proposals

A solicitation may be cancelled in whole or in part when the SPO determines in writing that the action is in the State's best interest for reasons including, but not limited to:

A) the State no longer requires the supplies or services;

B) the State no longer can reasonably expect to fund the procurement;

C) proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable;

D) ambiguous or otherwise inadequate specifications;

E) the solicitation did not provide for consideration of all factors of significance to the State;

F) prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

G) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

H) there is reason to question whether the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

When a solicitation is cancelled, notice of cancellation shall be posted to the Bulletin.
The notice of cancellation shall:

A) identify the solicitation;

B) briefly explain the reason for cancellation or rejection; and

C) when appropriate, explain that an opportunity will be given to compete on any re-solicitation or any future procurements of similar supplies or services.

c) Rejection of Individual Bids or Proposals

Individual bids or proposals may be rejected for reasons including, but not limited to:

A) the bid or proposal is not responsive (i.e., it does not conform in all material respects to the submission requirements for the solicitation);

B) the vendor that submitted the bid or proposal is nonresponsible as determined under Section 1.2046 (Responsibility);

C) the supply or service item offered in the bid or proposal is unacceptable by reason of its failure to meet the announced requirements of the solicitation, including, but not limited to, specifications or permissible alternates or other acceptability criteria set forth in the solicitation, statement of work or quotation; or

D) the proposed price, including options, is clearly unreasonable.

Notice of Rejection. Upon request, bidders or offerors whose bids or proposals have been rejected shall be advised of the reasons for rejection.

d) Cancellation of a Contract Award

A contract award may be cancelled if the SPO or CPO determines in the discharge of his or her fiduciary duty that there was a violation of the Code or this Part after the contract was awarded. Nothing in the Code or this Part compels an SPO to approve a contract if an award was made.

e) Documentation

The reason for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2043 Suppliers

A State agency may contract with any qualified source of supply, but shall use or consider, as applicable, the following special sources, from which procurements may be made without competition:

a) Correctional Industries in accordance with Subpart O. The CPO-GS, after consulting with Illinois Correctional Industries, a division of the Department of Corrections, shall determine the type and extent of the preference purchasing agencies shall give to supplies produced or services performed by Correctional Industries. Factors to be considered in determining the preference include, but are not limited to, the ability of Correctional Industries to meet the State's requirements, the price charged and the reason for the Correctional Industries program. This information shall be provided to each SPO and purchasing and using agencies.

b) State and Federal Surplus Warehouses under the jurisdiction of the Department of Central Management Services. (The State Property Control Act [30 ILCS 605/7a] requires that surplus furniture be considered before any purchase of new furniture valued at $500 or more per piece.)

c) Qualified workshops for persons with severe disabilities in accordance with Subpart O.

d) State agencies and other governmental units described in Section 1-10(b)(1) of the Code.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.2044 Vendor List

Each State agency may maintain a list of vendors who have expressed interest in contracting with the State. This list may be used to solicit for small purchases and emergency procurements, as well as to supplement Bulletin notices. Inclusion in any State agency-maintained vendor list shall not be a requirement to be considered for future contracting opportunities.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.2045 Vendor Prequalification

a) The SPO may prequalify prospective vendors when prequalification or preliminary evaluation of supplies or services prior to procurement would promote the effective conduct a procurement.

b) The SPO shall identify by publication in the Bulletin the qualifications or categories of supplies and services (including professional and artistic services) for which vendors of those supplies and services may prequalify.

c) Any opportunity to prequalify shall be announced in the Bulletin. The notice shall alert vendors of the consequences of failure to participate in the prequalification process.

d) When prequalifying a vendor, the SPO may limit prequalification to particular matters (e.g., determining whether a vendor has been and is likely to be "responsible" or whether the vendor manufactures domestically).

e) The fact that a prospective vendor has been prequalified generally does not necessarily represent a definitive finding of responsibility for a particular procurement.

f) When prequalifying a vendor, the SPO may consider factors tailored to a specific procurement or type of procurement, which shall be announced in the prequalification notice in the Bulletin.

g) Except in the case of professional and artistic services, distribution of and responses to the solicitation may be limited to prequalified vendors and award of a contract may be denied because a vendor was not prequalified. If eligibility for the procurement will be limited to prequalified vendors, the solicitation shall state that fact.

h) The prequalification may provide that any vendor who completes prequalification may refer to that prequalification when submitting responses to solicitation or in other procurement situations instead of submitting the same information with a response. This does not alleviate a vendor from providing updated certifications and other information as part of the prequalification process.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2046 Responsibility

a) Application

Before making an award or signing a contract, the SPO must be satisfied the prospective vendor is responsible. If there is doubt about responsibility, and if a bond or other security would adequately protect the State's interests, then that vendor may receive an award or contract upon receipt of the bond or other security.

b) Standards of Responsibility

Factors to be considered in determining whether the standard of responsibility has been met include, but are not limited to, financial responsibility, previous termination for cause, insurability, effective equal opportunity compliance, payment of prevailing wages if required by law, capacity to produce or sources of supply, performance record in the business or industry, ability to provide required maintenance service or other matters relating to the bidder's probable ability to deliver in the quality and quantity and within the time and price required under the contract, if it is awarded to the bidder. The vendor must be a legal entity authorized to do business in Illinois prior to submitting the bid, offer or proposal and qualified legally to contract with the State.

c) Information Pertaining to Responsibility

The State agency, in consultation with the SPO, may conduct discussions with a bidder or offeror to determine in greater detail the bidder's or offeror's qualifications, to explore with the bidder or offeror its ability to supply the specific supply or service, and the bidder's or offeror's proposed method of performance. This discussion is not for the purpose of determining whether one bidder's or offeror's product or service capability is superior to another, but only to determine that a bidder or offeror has the capability to perform. The prospective vendor shall supply information requested concerning the vendor's responsibility. The State may supplement this information from other sources and may require additional documentation at any time. If the vendor fails to supply the requested information, the SPO may disqualify the vendor or may base the determination of responsibility upon any available information.

d) Written Determination of Nonresponsibility Required

If a vendor that otherwise would have been awarded a contract is found non-responsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the State agency purchasing director or his or her designee and approved by the SPO. The final determination shall be made part of the procurement file.

e) Affiliated Companies

Vendors that are newly formed business concerns having substantially the same owners, shareholders, members, officers, directors or beneficiaries as a previously existing vendor that has been determined not responsible or has been suspended or debarred will also be determined to be not responsible.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2047 Security Requirements

a) Vendors shall furnish bid, proposal, material, completion, payment or performance security as specified in the solicitation or contract. The cost of providing security will be borne by the vendor unless otherwise stated in the solicitation.

b) Security, unless otherwise specified, may be in the form of cashier's check, certified check, money order, irrevocable letter of credit or bond. Any bond must be issued by a surety company authorized to do business in the State of Illinois and having a rating acceptable to the State agency.

c) Unless the amount is set by law, the State agency, in consultation with the SPO, will determine the amount, in dollars or percentage of contract price, that will adequately protect the State's interests. That amount will vary depending on the type of procurement and the risks and potential losses associated with delay or failure to complete the project, and for other such reasons.

d) A vendor may be required to furnish up to 100% performance security at any time during contract performance and at its cost, if it appears that delivery or production schedules cannot be met, quality is poor, responsibility is questioned and for similar reasons.

e) The vendor's subcontractor may also be required to furnish security. If the vendor does not have a stock of the supplies in question in the amount required or the facilities to produce the item in that amount, the State agency may, in addition, require the vendor to have the subcontractor furnish security acceptable to the State agency, conditioned on the source supplying the vendor as required in the solicitation.

f) Bid or Proposal Security

The bid or proposal will be used to ensure the bidder or offeror meets all obligations imposed under the solicitation, including the obligation to keep the price, bid or proposal firm for as long a period as specified in the solicitation to enter into a contract and the obligation to file a performance security. If required, when the contract is awarded, the State agency may retain the bid or proposal security as damages of the bidder or offeror fails to meet its obligations.
The bid or proposal security will be returned to the vendor as soon as is practicable after the bid or proposal opening. The three lowest qualified vendors' security will be returned as soon as possible after the contract is awarded or, if performance security is required, as soon as the successful vendor has filed acceptable performance security. Security will be returned to the unsuccessful vendors upon expiration of the bid or proposal firm time or execution of the contract, whichever is earlier.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2050 Specifications and Samples

a) Responsibilities Regarding Specifications

Subject to the SPO's direction, the State agency shall draft the necessary specifications.

b) Procedures for the Development of Specifications

All procurements shall be based on specifications that accurately reflect the State's needs. Specifications shall clearly and precisely describe the salient technical or performance requirements and shall be written in such a manner as to describe the requirements to be met, without being unduly restrictive or having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.
Any specifications or standards adopted by business, industry, not-for-profit organization or governmental unit may be adopted by reference.
A specification may provide alternate descriptions when two or more design, functional or performance criteria will satisfactorily meet the State's requirements.
Article 45 of the Code shall be considered and applied when required or appropriate.
A solicitation or specification for a contract, or a contract, may not require, stipulate, suggest or encourage a monetary or other financial contribution or donation, cash bonus or incentive, or economic investment as an explicit or implied term or condition of awarding or completing the contract. [30 ILCS 500/20-50]

c) Brand Name or Equal Specification

Brand name or equal specifications may be used in a competitive solicitation when:

A) no specification for a common or general use specification or qualified products list is available;

B) time does not permit the preparation of another form of specification;

C) the nature of the product or the nature of the State's requirement makes use of a brand name or equal specification suitable for the procurement; or

D) use of a brand name or equal specification is in the State's best interest.

Brand name or equal specifications shall seek to designate more than one brand as "or equal", and shall further state that substantially equivalent products to those designated will be considered for award.
Unless the State agency determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional or performance characteristics that are required.
When a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use. Burden of proof that the product is equal is on the bidder.

d) Brand Name Only Specification

A "brand name only" specification may be used in a competitive solicitation or a request to place an order with a vendor who has a contract that was the result of a multiple award, provided the State agency makes a written request justifying that only the identified brand name item will satisfy the State's needs and the SPO approves in writing the use of the brand name only specification.
Brand name alone may be specified in order to fill medical prescription needs, to stock State retail-type operations, to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the SPO. A State agency may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time, and for that period the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected.
The SPO shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable. Except in a request to place an order with a vendor who has a contract that was the result of a multiple award, if only one source can supply the requirement, the procurement shall be made under Section 1.2025 (Sole Source or Sole Economically Feasible Source Procurement).

e) Qualified Products List

A qualified products list may be developed by the SPO when testing or examination of the supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy State requirements.
When developing a qualified products list, a notice shall be posted to the Bulletin soliciting potential suppliers to submit products for testing and examination to determine acceptability for inclusion in a qualified products list.
Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements.

f) Proven Products

The supply or service may be rejected if it has not been offered to other governmental or commercial accounts for at least one year prior to the notice date of a solicitation. Specifications may require that the supply or services must have been used in governmental or commercial venues for a specified period of time to be considered.

g) State Required Samples

Samples or descriptive literature may be requested when it is necessary to evaluate required characteristics of the items bid. Any required samples must be submitted as instructed in the solicitation, with transportation prepaid by the vendor. Each sample must be labeled with the vendor's name, address and a means of matching the sample with the applicable bid or proposal.
Any sample submitted must be representative of the item that would be delivered if a contract were awarded for that item. Samples submitted by a successful vendor will be retained to check continuing quality. Submission of samples will not limit the State's right to require adherence to specifications.
No payment will be made for samples. Samples not destroyed or consumed by examination or testing will be returned upon request and at vendor's expense. The request must be made at time of submission with return collect or prepayment provisions and instructions for return accompanying the samples. If the vendor does not request return of samples not destroyed or consumed by examination or testing, the State agency may use, donate or destroy unused or leftover samples.
Unsolicited bid samples or descriptive literature are submitted at the vendor's risk, may or may not be examined or tested, will not be deemed to vary any of the provisions of the solicitation, and may not be utilized by the vendor to contest a decision or understanding with the State agency.

h) Product Demonstration

Subject to the requirements of Section 50-39 of the Code, a vendor may request to demonstrate a product or service. Agreement to allow a demonstration will be solely at the State's discretion and will not entitle the bidder to a contract nor shall payment for the demonstration be allowed unless a written contract had been executed prior to the demonstration. No payment will be made for the product demonstration period. The product demonstration will be returned upon request and at the vendor's expense. The request must be made prior to the time of product demonstration with return collect or prepayment provisions and instructions for return accompanying the product demonstration.

i) Specifications Prepared by Other Than State Personnel

Specifications may be prepared by other than State agency personnel, including, but not limited to, consultants, architects, engineers, designers or other drafters of specifications for public contracts when the SPO determines that there will be no conflict of interest involved and is otherwise in the best interest of the State agency. The SPO retains the authority for final approval of the specifications. Contracts for the preparations of specifications by other than State agency personnel shall require the specification writer to adhere to State agency requirements and the terms of the Code and this Part.

j) Pre-Solicitation Request for Information

When the SPO does not have sufficient information about available supplies or services to issue a solicitation, he or she may issue a pre-solicitation request for information inviting vendors to submit non-price information about the availability of specified types of supplies and services. Vendors may be provided an opportunity to comment on the RFI itself and make non-proprietary suggestions as to the scope and information being requested that would facilitate the best possible responses from the vendor community. Public notice of the pre-solicitation request for information shall be published in the Bulletin at least 14 days before the date set for the receipt of information. The submission of information by a vendor in response to a pre-solicitation request for information is not a prerequisite for that vendor to respond to a subsequent solicitation for the types of supplies and services for which information was solicited, and the issuance of a pre-solicitation request for information does not commit the State agency to make any procurement of supplies or services of any kind. Confidential information will not be accepted from a vendor in response to a pre-solicitation request for information. All information received through a pre-solicitation request for information will be available for public review.

k) State contracts for the procurement of freight, small package delivery, and other cargo shipping and transportation services shall require providers to report, using generally accepted reporting protocols adopted by the Illinois Environmental Protection Agency for that purpose:

the amount of energy the service provider consumed to provide those services to the State and the amount of associated greenhouse gas emissions, including energy use and greenhouse gases emitted as a result of the provider's use of electricity in its facilities;
the energy use and greenhouse gas emissions by the service provider's subcontractors in the performance of those services. [30 ILCS 530/10]

l) Optional Supplies or Services

The solicitation shall identify which parts or features of the work are essential and which optional supplies or services may be included in the project.
All optional supplies or services must be clearly identified in the solicitation as optional work.
The solicitation shall identify how the State agency will evaluate bids, offers, or responses to determine the lowest price bid or most advantageous proposal, for award purposes, by identifying whether optional supplies or services will or will not be included in the price evaluation.
A bid, offer, or response may be rejected if the prices, including optional supplies or services, are significantly or materially unbalanced. A bid or offer is significantly or materially unbalanced:

A) when it is based on prices significantly less than the cost for some work and prices that are significantly overstated in relation to the cost for other work; and

B) if there is a reasonable doubt that the bid will result in the lowest overall cost or the best overall value to the State agency, even though it may be the low bid or best value offer.

Evaluation of optional supplies or services does not obligate the State agency to use those optional supplies or services. If the State agency adds optional supplies or services not accepted at the time of contract award, a change order must be executed based on the price provided in the bid, offer, or response. Notice of the intent to exercise any optional supply or service must be published in the Bulletin 14 days in advance of exercise of the optional supplies or services.
Pricing for any renewal terms identified in the solicitation shall be applied in determining the price. A renewal term is not an optional supply or service.
Negotiations are permitted with the lowest responsible bidder or the best value offeror to obtain a reduction in the price of the bid or offer.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2055 Types of Contracts

a) Scope

This Section contains descriptions of types of contracts and limitations as to when they may be utilized by the State in its procurements. Types of contracts not mentioned in this Section may also be utilized with the approval of the SPO.

b) Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

The cost-plus-a-percentage-of-cost contract is prohibited by Section 20-55 of the Code. This type of contracting may not be used alone or in conjunction with an authorized type of contract. A cost-plus-percentage-of-cost contract is one in which the vendor selects the supply or service on which the vendor's percentage is applied.

A percentage mark-up from an agreed price list is not a cost-plus-a-percentage-of-cost contract.
A percentage mark-up from the cost of a supply or service selected by the State or another vendor under contract to the State is not a cost-plus-a-percentage-of-cost contract.
A percentage mark-up from the cost of parts needed in relation to a contract for services does not convert the services contract to a prohibited cost-plus-a-percentage-of-cost contract, provided the parts supplied under the cost-plus-a-percentage-of-cost method do not exceed 20% of the value of the contract.

c) Types of Fixed-Price Contracts

Firm Fixed-Price Contract. A firm fixed-priced contract provides a price that is not subject to adjustment because of variations in the vendor's cost of performing the work specified in the contract.
Fixed-Price Contract with Price Adjustment

A) A fixed-price contract with price adjustment provides for variation in the contract price under special conditions defined in the contract, other than customary provisions authorizing price adjustments due to modifications to the work. The formula or other basis by which the adjustment in the vendor's price can be made shall be specified in the solicitation and the resulting contract. Adjustment allowed may be upward or downward only, or both upward and downward. Examples of conditions under which adjustments may be provided in fixed-price contracts are:

i) changes in the vendor's labor agreement rates as applied to an industry or area (such as are frequently found in contracts for the purchase of coal);

ii) changes due to rapid and substantial price fluctuations that can be related to an accepted index (such as contracts for gasoline, heating oils and dental gold alloy); and

iii) in requirement contracts in which a vendor is selected to provide all of the State's needs for the items specified in the contract, when a general price change applicable to all customers occurs, or when a general price change alters the base price (such as a change in a manufacturer's published price list or posted price to which a fixed discount is applied pursuant to the contract to determine the contract price).

B) If the contract permits unilateral action by the vendor to bring about the condition under which a price increase may occur, the State shall have the right to reject the price increase and terminate without cost the future performance of the contract.

d) Cost-Reimbursement Contracts

Determination Prior to Use

A) The State agency must submit to the SPO a justification for using any type of cost-reimbursement contract. This justification must be sufficient to show that such a contract is likely to be less costly to the State than any other type or that it is impracticable to obtain the items through any other type of contract. The SPO will consider the justification and any other relevant factors before making a written determination to authorized use of the cost-reimbursement contract.

B) Any reimbursement of travel expenses authorized in the solicitation and the terms of the contract may not exceed the applicable travel control board regulations.

Cost-Reimbursement Contract. A cost-reimbursement contract provides that the vendor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee. These contracts establish an estimate of total cost and must establish a ceiling that a vendor may not exceed without the written approval of the SPO.
Cost-Plus-Fixed-Fee Contract. This cost-reimbursement type contract provides for payment to the vendor of an agreed fixed fee in addition to reimbursement of allowable incurred costs. The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for the work. Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed. The fee is subject to adjustment only if the contract is modified to provide for an increase or decrease in the scope of work specified in the contract.
Cost Incentive Contracts

A) General. A cost-incentive type of contract provides for the reimbursement to the vendor of allowable costs incurred up to the ceiling amount and establishes a formula whereby the vendor is rewarded for performing at less than target cost (that is, the parties' agreed best estimate of the cost of performing the contract will vary inversely with the actual, allowable costs of performance and consequently is dependent on how effectively the vendor controls cost in the performance of the contract).

B) Fixed-Price Cost-Incentive Contract. In a fixed-price cost-incentive contract, the parties establish at the outset a target cost, a target profit (that is, the profit that will be paid if the actual cost of performance equals the target cost), a formula that provides a percentage increase or decrease of the target profit depending on whether the actual cost of performance is less than or exceeds the target cost, and a ceiling price. After performance of the contract, the actual cost of performance is arrived at based on the total incurred allowable costs as provided in the contract. The final contract price is then established in accordance with the formula using the actual cost of performance. The final contract price may not exceed the ceiling price. The vendor is obligated to complete performance of the contract and, if actual costs exceed the ceiling price, the vendor suffers a loss.

C) Cost-Reimbursement Contract with Cost-Incentive Fee. In a cost-reimbursement contract with cost-incentive fee, the parties establish at the outset a target cost; a target fee; a formula for increase or decrease of fee depending on whether actual cost of performance is less than or exceeds the target cost, with maximum and minimum fee limitations; and a cost ceiling that represents the maximum amount that the State is obligated to reimburse the vendor. The vendor continues performance until the work is complete or costs reach the ceiling specified in the contract, including any modification thereof, whichever first occurs. After performance is complete or costs reach the ceiling, the total incurred allowable costs reimbursed as provided in the contract are applied to the formula to establish the incentive fee payable to the vendor.

e) Performance Incentive Contracts

In a performance incentive contract, the parties establish at the outset a pricing basis for the contract, performance goals, and a formula that varies the profit or the fee if the specified performance goals are exceeded or not met. For example, early completion may entitle the vendor to a bonus, while late completion may entitle the State to a price decrease.

f) Time and Materials Contracts; Labor Hour Contracts

Time and materials contracts provide for an agreed basis for labor performed and payment for materials supplied. Labor hour contracts provide only for the payment of labor performed. A time and materials contract is typically used when it is not possible at the time of posting the solicitation to estimate accurately the extent or duration of the work or to anticipate costs with any reasonable degree of confidence. Appropriate contract administration by the State agency is required to give reasonable assurance that efficient methods and effective cost controls are being used. The contracts shall contain a stated ceiling or an estimate that shall not be exceeded without prior SPO approval. If the stated ceiling or estimate is exceeded, a change order shall be executed to memorialize the transaction if required by law.

g) Indefinite Delivery Contracts

Definite Quantity. A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services at specified times or when ordered, with deliveries or performance scheduled at designated locations upon order. A definite quantity contract may be used when it can be determined in advance that a definite quantity of supplies or services will be required during the contract period.
Indefinite Quantity. An indefinite quantity contract is a contract for an indefinite amount of supplies or services furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type. Generally, an indefinite quantity contract is based on historical usage or the best information available as to quantity as stated in the solicitation and is not a guarantee of a quantity to be ordered. The contract may provide a minimum quantity the State is obligated to order and may also provide for a maximum quantity provision that limits the State's ability to order. If an estimated quantity is identified in the contract or the notice of award published in the Bulletin, the State agency may order up to 20% more than the estimate without written SPO approval. Any such authorization shall be documented in writing and published in the Bulletin.
Requirements Contracts. A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the State to order all the actual requirements of designated State agencies during a specified period of time, with deliveries or performance scheduled at designated locations upon order. If identified in the solicitation as a requirements contract, all needed quantity, regardless of any stated estimate, must be ordered from that contract. A requirements contract shall state a realistic estimated total quantity in the solicitation and resulting contract, but this is not a representation that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable or normal.

h) Leases

A lease is a contract for the use of supplies or real property under which title will not pass to the State at any time, except pursuant to an option to purchase.

i) Recovery Contracts

Contracts may provide for payment to the vendor of a percentage of the amount the vendor recovers or collects on behalf of the State. The percentage may be fixed or may vary depending on amount of recovery or other factors, and the percentage may be paired with a fixed price or cost reimbursement method.

j) Renewal, Extension or Purchase Provisions

A solicitation or contract may contain provisions for renewal, extension or purchase. If a solicitation or contract includes these provisions, the requirements for exercising them, the term, and the price or the formula for establishing the price must be stated in the solicitation and contract. Contracts based on a solicitation may include only those renewal, extension or purchase provisions included in the solicitation, and these provisions shall be included as required terms in the contract. Exercise of any renewal, extension, or purchase provision shall be performed in accordance with the contract, the Code, and other provisions of this Part. Failure to include the renewal, extension or purchase provisions in the contract shall render those provisions void.

k) State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available in-house or from State programs, such as the Illinois Correctional Industries, may be ordered without violating any contract.

l) Extraordinary Quantities

Notwithstanding any provision in any contract, the State reserves the right to take bids separately if a particular quantity requirement arises that exceeds the State's normal needs or ordering requirements.

m) Energy Conservation

State agency procurements of energy conservation measures, including guaranteed energy savings contracts, shall be made in accordance with the Code and this Part, except as otherwise authorized by the Code.

n) Sale of Advertising in State Publications

Pursuant to Section 20-110 of the Code and subject to SPO approval, a State agency may sell ads or advertising space in certain State publications. The sale of advertising or promotional consideration is not exempt from this Part.
These arrangements shall be made pursuant to specifications included in an IFB or, if appropriate, an RFP.
The advertising in, or authorized use of, State publications shall be appropriate to the type of publication and the program operations of the State agency.
This procedure is authorized in conjunction with, for example, publications that promote tourism, conservation, recycling and the State Fairs. The executive head of the State agency must concur in writing for the State agency to accept advertising from a person the State agency regulates.
Proceeds from the sale of the advertisements shall be paid as stated in the IFB or RFP, including, but not limited to, the following:

A) to the General Revenue Fund;

B) to a special fund authorized to receive the proceeds;

C) as free or additional copies; or

D) directly to the printer by the advertiser.

o) Contracting for Installment Purchase Payments, Including Interest

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2060 Duration of Contracts - General

a) General

The term of a contract, including potential renewals, may not exceed 10 years except a software license designated as a perpetual license is not considered a multi-term contract; it is instead a one-time purchase.

b) Subject to Appropriation

Each contract is contingent upon and subject to the availability of funds. The State agency, at its sole option, may terminate or suspend a contract, in whole or in part, without penalty or further payment being required, if the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay that obligation or if funds needed are insufficient for any reason. Each contract payable in whole or in part by any funds appropriated by the Illinois General Assembly shall recite that the contract is subject to termination and cancellation for lack of, or insufficiency in, funding. A vendor will be notified in writing by the State agency of a failure to receive or a reduction or decrease in any appropriation affecting the contract. This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

c) Conditions for Use of Multi-Year Contracts

A multi-year contract may be used when:

special production of definite quantities or the furnishing of long-term services is required to meet State needs; or
a multi-year contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement. The following factors are among those relevant to such a determination:

A) firms that are not willing or able to compete because of high start-up costs or capital investment in facility expansion will be encouraged to participate in the competition when they are assured of recouping costs during the period of contract performance;

B) lower production costs because of a larger quantity of service requirements, and substantial continuity of production or performance over a longer period of time, can be expected to result in lower unit prices;

C) stabilization of the vendor's work force over a longer period of time may promote economy and consistent quality; or

D) the cost and burden of contract solicitation, award and administration of the procurement may be reduced.

d) Multi-Year Contract Procedure

The solicitation shall state:

the proposed term;
the amount of supplies or services required for the proposed contract period;
the type of pricing requested (e.g., firm for term); and
how award will be determined.

e) Renewals

The initial term of a contract plus available renewals may not exceed 10 years. When the original contract specifically calls for an initial term plus renewals, the renewals may be exercised without further procurement activity, except for the publication of the renewal in the Bulletin as required by Section 15-25 of the Code and Section 1.1525 of this Part and subject to review by the PPB under Section 5-30 of the Code. The renewal terms and conditions shall not change except as provided in the contract (such as price escalations tied to an index). Renewal provisions may be exercised by the State or by mutual agreement, but shall not be exercised solely at the option of the vendor. Any renewal that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to competitive procurement procedures established by the Code and this Part.
A renewal may only be entered into if authorized by the original contract.
When a renewal will result in the total term, counting the initial term and any previous renewals, exceeding 10 years, the State agency's need must be procured using one of the methods of source selection authorized by the Code and this Part.
Renewals must be fully executed on or before expiration of the current contract term. If the renewal is not exercised prior to expiration of the current contract term, the supplies and services must be procured using one of the methods of source selection authorized by the Code and this Part.
Filing of Proposed Renewals and Extensions Exceeding $249,999

Prior to executing a renewal or extension with a cost estimated to exceed $249,999, the proposed renewal or extension must be submitted to PPB. The PPB shall have up to 30 days to review and comment on the proposal. The SPO assigned to the State agency may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2065 Cancellation of Contracts

a) In any of the following cases, the State agency, in consultation with the SPO, shall have the right to terminate or rescind any contract entered into under this Part without penalty:

The successful vendor inexcusably fails to furnish a satisfactory performance bond within the time specified.
The vendor inexcusably fails to make delivery at the place or within the time specified in the contract or as ordered by the purchasing agency.
Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies or services promptly.
The vendor is guilty of misrepresentation (e.g., misbranding of food or drugs) in connection with another contract for the sale of supplies or services to the State such that the vendor cannot reasonably be depended upon to fulfill obligations as a responsible vendor under other contracts with the State.
The vendor should be adjudged bankrupt; enter into receivership or make a general assignment for the benefit of creditors due to insolvency; disregard laws, rules, or instructions of the SPO; or act in violation of any provision of the contract; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.
Any other breach of contract or other unlawful act by the vendor.
The contract was obtained by fraud, collusion, conspiracy or other unlawful means; or
The contract conflicts with any statutory provision of the State of Illinois or of the United States.

b) Damages

The damages for which the State may be compensated as provided in this Section or by a suit on the vendor's performance bond or by other legal remedy shall include, but are not limited to, the following:

the additional cost of supplies or services bought elsewhere;
cost of repeating the procurement procedure;
any expenses incurred because of delay in receipt of supplies or services; and
any other damages caused by the vendor's breach of contract or unlawful act.

c) Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the State agency may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the State agency for any damage resulting from termination or rescission.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.2067 Contract Amendments and Change Orders

a) Contract amendments memorialize actions authorized by specific language in the contract (e.g., exercise of an option or showing price decrease or increase based on CPI) or memorialize non-material changes (e.g., change in names of notice contacts or number of periodic status meetings).

b) Change Orders

A change order is defined in Section 1.15. Renewals, change of a vendor's name, and orders against master contracts are not change orders.
Change orders that increase or decrease the cost of a contract or an estimated contract by a total of $10,000 or more, or the time of completion by a total of 30 days or more, must be accompanied by a written determination that includes a statement that: the circumstances said to necessitate the change in performance were not reasonably foreseeable at the time the contract was signed; the change is germane to the original contract as signed; or the change order is in the best interest of the State. [720 ILCS 5/33E-9] Agencies may not divide change orders into smaller parts to avoid requirements for written determinations or publication.
A change order shall be executed by the State agency and vendor evidencing the change. All changes that require a written determination as provided in subsection (b)(2) shall be approved by the SPO. Change orders that increase the cost of a contract or an estimated contract by a total of $10,000 or more or the time of completion by more than 30 days shall be published on the Bulletin, pursuant to Section 15-25 of the Code and documented pursuant to Section 33E-9 of the Criminal Code of 2012 [720 ILCS 5], in advance of execution of the change order. Although use of emergency contracting is discouraged, if exigent circumstances require contract execution prior to publication on the Bulletin (e.g., emergency salt purchases on a holiday), emergency contracting is permitted pursuant to Section 20-30 of the Code.
A change order to a contract for professional or artistic services may not:

A) result in an increase in the amount paid under the contract by more than 5% of the initial award; or

B) extend the contract term beyond the time reasonably needed for a competitive procurement by more than two months.

The total contract term, including the initial term, renewals, extensions and change orders shall not exceed 10 years. Any change order that would extend the total term beyond 10 years is void. Any continuing need for supplies and services must be procured using one of the methods of source selection authorized by the Code and this Part.
Prior to executing a change order with a cost estimated to exceed $249,999, the proposed change order must be submitted to PPB. The PPB shall have up to 14 days to review and comment on the change order. The SPO assigned to the State agency may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2080 Public Procurement File

a) A procurement file shall be maintained for all contracts, regardless of the method of procurement. The procurement file shall contain the basis on which the award is made, all submitted bids and proposals, all evaluation materials, score sheets and all other documentation related to or prepared in conjunction with evaluation, negotiation and the award process. The procurement file shall contain a written determination, signed by the SPO, setting forth the reasoning for the contract award decision. The public procurement file shall not include trade secrets or other competitively sensitive, confidential or proprietary information. The procurement file shall be open to public inspection within 7 days following award of contract. [30 ILCS 500/20-155(b)]

b) The procurement files shall be maintained by or under the jurisdiction of the CPO-GS.

c) Documentation of Procurement Actions

Each purchasing agency, under the direction of the SPO, shall maintain in the procurement or associated contract file all substantive documents and records of communications that pertain to the procurement and any resulting contract. This shall include, as applicable, but is not limited to:

The form of decision memo showing approvals to proceed at all stages;
Bulletin postings;
Solicitation document (e.g., IFB or RFP) and all amendments, clarifications and best and final requests;
Vendors' responses, including clarifications and responses to best and final requests (losing responses may be stored elsewhere);
Evaluation material (e.g., scoring guidelines and forms; completed score sheets for individual evaluators, including notes; evaluation team's combined score sheets; evaluation team's recommendation; and management's decision);
Protest and resolution;
Contract and any order, change order, amendments, renewal or extension;
If conducted, contractor performance reviews;
All information from subsections (c)(1) through (c)(8), less information exempt from disclosure under the Freedom of Information Act or other law (for example the Architectural, Engineering and Land Surveying Qualifications Based Selection Act, which exempts contractor performance reviews), shall be prepared and available for inspection and copying, with information from subsections (c)(1) through (c)(5) available within 7 business days following the award being posted to the Bulletin.

d) The procurement file includes the contract file.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.2084 Record Retention

a) Retention of Bulletin Information. Information published in the Bulletin shall be disposed of in accordance with the State Records Act [5 ILCS 160], providing all audits have been completed and no litigation is pending or anticipated.

b) Books and records that relate to performance of a State agency contract and that support amounts charged shall be maintained:

by a vendor, for 3 years from the date of final payment under the prime contract; and for such longer period of time as is necessary to complete ongoing or announced audits or to comply with federal requirements.
by a subcontractor for 3 years from the later of the date of final payment under the subcontract or completion of the subcontract; and for such longer period of time as is necessary to complete ongoing or announced audits.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.2086 Filing with the Comptroller

a) Filing with Comptroller

Whenever a grant, defined pursuant to accounting standards established by the State Comptroller, or a contract liability, except for contracts paid for from personal services or contracts between the State and its employees to defer compensation in accordance with Article 24 of the Illinois Pension Code, exceeding $20,000 is incurred by any State agency, a copy of the contract, purchase order, grant or lease shall be filed with the Comptroller within 30 days thereafter. [30 ILCS 500/20-80(b)]
For each State contract for supplies or services awarded on or after July 1, 2010, the contracting agency shall provide the applicable rate and unit of measurement of the supplies or services on the contract obligation document as required by the Comptroller. [30 ILCS 500/20-80(b)]
Any cancellation or modification to any such contract liability shall be filed with the Comptroller within 30 days after its execution. [30 ILCS 500/20-80(b)]

b) Late Filing Affidavits

When a contract, purchase order, grant or lease required by this Section to be filed with the Comptroller has not been filed within 30 days after execution, the Comptroller shall refuse to issue a warrant for payment thereunder until the State agency files with the Comptroller the contract, purchase, purchase order, grant or lease, and an affidavit, signed by the chief executive officer of the State agency or his or her designee, setting forth an explanation of why the contract liability was not filed within 30 days after the execution. A copy of this affidavit shall be filed with the Auditor General. [30 ILCS 500/20-80(c)]

c) Timely Execution of Contracts

No voucher shall be submitted to the Comptroller for a warrant to be drawn for the payment of money from the State Treasury or from other funds held by the State Treasurer on account of any contract unless the contract is reduced to writing before the services are performed and filed with the Comptroller. Vendors shall not be paid for any supplies that were received or services that were rendered before the contract was reduced to writing and signed by all the necessary parties. [30 ILCS 500/20-80(d)]
Upon written request of the State agency and with justification required by the CPO-GS, the CPO-GS may request an exception to Section 20-80(d) of the Code by submitting a written statement to the Comptroller and Treasurer setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services were performed. A waiver of Section 20-80(d) of the Code must be approved by the Comptroller and Treasurer. Section 20-80(d) of the Code does not apply to emergency purchases if notice of the emergency purchase is filed with the PPB and published in the Bulletin as required by the Code. [30 ILCS 500/20-80(d)]
The CPO-GS may require the State agency to provide additional information on a form prescribed by the CPO-GS.
Regardless of the source of funds, contracts or change orders shall be reduced to writing before supplies are received or services are rendered. If supplies are received or services are performed prior to execution of a contract or change order, a written statement setting forth the circumstances and reasons why the contract or change order could not be reduced to writing before the supplies were received or the services were performed shall be maintained in the procurement file. Agencies shall provide a monthly report to the SPO of contracts or change orders not reduced to writing before supplies or services were rendered.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.2560 Prevailing Wage

a) Responsible Vendors

In order to be considered responsible under Section 1.2046, vendors of the following classifications of services must certify that wages to be paid to their employees are no less, and fringe benefits and working conditions of employees are not less favorable, than those prevailing in the locality where the proposed contract is to be performed:

A) Printing.

B) Janitorial cleaning services, window cleaning services, building and grounds services, site technician services, natural resources services, food services and security guard services having a total value of $2,000 or more or $200 or more per month.

This Section does not apply to services furnished under contracts for professional or artistic services or to vocational programs of training for persons with physical or mental disabilities or to qualified not-for-profit agencies for persons with severe disabilities;

b) Vendors awarded contracts or subcontracts on public works projects shall comply with the requirements of the Prevailing Wage Act [820 ILCS 130].

c) Prevailing wages, benefits and conditions will be determined by the Illinois Department of Labor.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.2570 Equal Employment Opportunity; Affirmative Action

Pursuant to Section 7-105A of the Illinois Human Rights Act (IHRA) [775 ILCS 5/7-105A], the Department of Human Rights (DHR) has promulgated rules (44 Ill. Adm. Code 750) that requires certain bidders or offerors to register with DHR in order to be eligible for the award of certain public contracts.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.2575 Subcontractors (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.2800 All Costs Included (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.3005 Construction and Construction Related Professional Services

a) General Provisions for Construction of Buildings

In the case of contracts for construction of buildings or for other construction work in or about buildings or grounds when the entire estimated cost of the work exceeds the amount stipulated by Section 20-20 of the Code, prospective contractors employed in connection with those projects may be prequalified to determine their responsibility (for architects, engineers and land surveyors, see the Architectural, Engineering and Land Surveying Qualifications Based Selection Act). If the total estimated cost of the work exceeds the amount stipulated by Section 30-30 of the Code, separate specifications shall be prepared for all equipment, labor and materials in connection with the following five subdivisions of work to be performed:

A) Plumbing.

B) Heating, piping, refrigeration and automatic temperature control systems, including the testing and balancing of these systems.

C) Ventilating and distribution systems for conditioned air, including the testing and balancing of those systems.

D) Electrical wiring.

E) General contract work.

The specifications shall be drawn so as to permit separate and independent competitive bidding upon each of the above five subdivisions of work. All contracts awarded for any part of the work shall award the subdivisions separately to responsible and reliable contractors engaged in these classes of work. These contracts, at the discretion of the State agency, may be assigned to the successful bidder on the general contract work or to the successful bidder on the subdivision of work designated by the State agency prior to the bidding as the prime subdivision of work, with the provision that all payments will be made directly to the contractors for the five subdivisions upon compliance with the conditions of the contract. Any contract may be awarded for one or more buildings in any project to the same contractor. Specifications shall require, however, that, unless the buildings are identical, a separate price shall be submitted for each building. The contract may be awarded to the lowest responsible bidder for all of the buildings included in the specifications.

b) Request for Payment Form Specified by the State Agency

To bill a State agency for remodeling, renovation or construction work done, the vendor must submit a payment request in the form specified by the State agency.

c) Periodic Payments

When provided in the contract, periodic payments can be made during the course of the work, upon a certificate of a licensed architect or engineer indicating the proportionate amount of total work completed satisfactorily.

d) Retained Percentage

When periodic payments are made and if specified in the contract, the State agency shall retain a fixed percentage of the contract price to insure faithful completion of the contract.

e) Additional Work

No amount of funds, in addition to those provided for in a contract for repairs, maintenance, remodeling, renovation or construction, may be obligated or expended unless the additional work to be performed or materials to be furnished are germane to the original contract. Even if germane to the original contract, no additional expenditure or obligations may, in their total combined amount, be in excess of the percentages of the original contract amount as provided in Section 30-35(b) of the Code unless they have received the prior written approval of the construction agency. In the event the total of the combined additional expenditures or obligations exceeds the percentages of the original contract amount set forth in Section 30-35(b) of the Code, the construction agency shall investigate the additional expenditures or obligations in excess of the original contract amount and shall, in writing, approve or disapprove subsequent expenditures or obligations and state in detail the reasons for the approval or disapproval. Notices of additional expenditures or obligations in excess of the small purchase limit of Section 202-20 of the Code shall be published in the Bulletin.

f) Improvements to Leased Real Estate

The procedures set forth in this Part shall apply, as appropriate, to contracts for improvements to real estate leased to State agencies.

g) Construction Manager Services

Procurement of Construction Manager Services, under the jurisdiction of the Capital Development Board (CDB) will be performed by CDB or through delegation from CDB.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4005 Real Property Leases and Capital Improvement Leases

Real property leases and capital improvement leases are subject to, and shall be procured in accordance with, the Code and this Part and those in 44 Ill. Adm. Code 5000. In the event of a conflict, Subpart N shall prevail.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4010 Authority

SPOs shall have the authority to procure leases for real property or capital improvements. Procurement of leased space shall be conducted in the most efficient and effective manner to provide adequate and appropriate space for the operation of State agencies in accordance with their missions.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4015 Method of Source Selection

a) Leases shall be procured by using a Request for Information for Real Property or Capital Improvement Leases (RFI-Real Property Leases) process, except as provided in subsection (b).

b) The RFI-Real Property Leases process is not required in the following circumstances, unless the SPO determines that the competitive RFI process is in the best interests of the State for extensions of leases. Written records of any negotiations shall be maintained in the procurement file.

Property of less than 10,000 square feet with rent of less than $100,000 per year.
Duration of less than one year that cannot be renewed.
Specialized space available at only one location. Specialized space is defined as space of unique function or configuration, not generally available on the market on an as built or turnkey basis. Examples of specialized space include, but are not limited to, laboratories, vehicle testing stations, correctional facilities, medical facilities, boat docks and evidence storage facilities.
Renewal or extension of leases provided that:

A) The CPO-GS determines in writing that the renewal or extension is in the best interest of the State agency;

B) The CPO-GS submits his or her written determination and the renewal or extension to PPB;

C) PPB does not object in writing to the renewal or extension within 30 days after its submission; and

D) The SPO publishes notice of the renewal or extension in the Bulletin at least 30 days prior to the exercise of the renewal or extension option.

Leases with other governmental units may be negotiated without using the RFI-Real Property Leases process when deemed by the CPO-GS to be in the best interest of the State. [30 ILCS 500/40-15]

c) The procurement file shall include the lease file mentioned in the Code.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.4020 Request for Information - Real Property and Capital Improvement Leases

a) RFI-Real Property Leases Form

When required, an RFI-Real Property Lease shall be issued and include, but not be limited to, the following:

The type of property to be leased;
The proposed uses of the property;
The duration of the lease;
The preferred location of the property, including acceptable geographic boundaries;
A general description of the configuration desired [30 ILCS 500/40-20(b)];
Special and standard lease terms and conditions, qualifications and responsibility requirements, disclosures and certifications;
The permissible methods of submission, including the address to which responses may be sent; and
The criteria for evaluating responses based on the minimum standards and conditions for occupancy.

b) All required documents of the RFI-Real Property Leases will be available in electronic format from the Bulletin. Notice shall begin when first published electronically. RFI-Real Property Leases document packages may also be mailed to owners of property that may meet the State's needs after the RFI-Real Property Leases have been published in the Bulletin.

c) RFI-Real Property Leases document packages shall, at a minimum, include:

Response forms and instructions for completing forms;
A copy of spatial and performance guidelines required to meet the needs of the State agency to occupy the real property being procured; and
The date and time responses must be submitted.

d) Public Notice

Public notice of the RFI-Real Property Leases shall be published in the Bulletin at least 14 days before the date set forth in the request for receipt of responses and shall also be published in a similar manner in a newspaper of general circulation in the community or communities where the State agency is seeking space [30 ILCS 500/40-20(c)].

e) Response

The RFI-Real Property Leases response shall consist of written information sufficient to show that the respondent can meet minimum criteria set forth in the RFI-RPL. [30 ILCS 500/40-20(d)] All responses to the RFI-Real Property Leases will be publicly opened on the announced date. Names of all parties submitting proposals will be made available to the public immediately following the opening of the proposals.

f) Negotiation and Determination

The SPO or those who conduct leasing activities may enter into discussions with respondents to the RFI-Real Property Leases for the purpose of clarifying State agency needs and the information supplied by the respondents, On the basis of the information supplied and discussions, if any, the SPO shall make a written determination identifying the responses that meet the minimum criteria set forth in the RFI-Real Property Leases. Negotiations shall be entered into with all qualified respondents for the purpose of securing a lease that is in the best interest of the State. [30 ILCS 500/40-20(d)] Site visits may be made as part of the discussion and/or negotiation process.
The SPO reserves the right to reject any responses and to request and evaluate "best and final" proposals. Best and final offers shall be sought after a written determination is made by the SPO or designee that it is in the best interest of the State to request best and final proposals. A best and final proposal shall not be requested from any vendor deemed non-responsive or who does not meet the minimum criteria set forth in the RFI.
The State agency advertised in the RFI may be substituted by another State agency prior to award as long as the elements listed in subsections (a)(1) through (6) do not change materially as a result of the substitution and the solicitation allows for that substitution.

g) Contract Award, Reporting and Filing

The SPO shall review all relevant information and shall make the final award, which will be published in the Bulletin. Notification of award will be sent to all respondents.
When the lowest response by price is selected, a written report of the negotiation shall be retained in the procurement file and shall include the reasons for the final selection.
When the lowest response by price is not recommended, the SPO shall forward to the CPO-GS, along with the lease, notice of the identity of the lowest respondent by price, and written reasons for the recommendation of a different response. The CPO-GS shall publish the written reasons for selection in the next volume of the Bulletin. [30 ILCS 500/40-20(d)] The written reasons for the selection of the vendor shall be retained in the procurement file.

h) PPB Review

PPB shall review any proposed lease of real property of more than 10,000 square feet or any proposed lease of real property with annual rent payments of $100,000 or more. The PPB shall have 30 days to review the proposed lease. No contract may be entered into until the 30-day period has expired, unless the State agency requests in writing that the PPB waive the period and the PPB grants the waiver in writing. If the PPB does not object within 30 days, the proposed lease shall become effective. [30 ILCS 500/40-20(e)]

i) State Agency Cooperation

A State agency shall provide any materials or provide any assistance the PPB determines is required for its review. PPB may request in writing from the State agency and the State agency shall promptly, but in no event later than 5 business days after receipt of the request, provide to PPB documentation of information in the possession of the State agency.

j) Actions and determination made in this subsection shall be made in consultation with the Department of Central Management Services, the State agency responsible for the purchasing and leasing of real property as defined in 20 ILCS 405/405-300 (Department of Central Management Services Law).

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4025 Lease Requirements

a) Length of Leases

Maximum Term. Except when a longer term is authorized by law, leases, inclusive of renewals, shall be for a term not to exceed 10 years and shall include a termination option in favor of the State after 5 years.
Renewal Option. Leases may include a renewal option. An option to renew may be exercised only when the CPO-GS determines in writing that renewal is in the best interest of the State. The CPO-GS shall publish a notice of the intent to exercise the option in the Bulletin at least 30 days prior to the exercise of the option. [30 ILCS 500/40-25(b)]
All leases shall include a provision that they are subject to termination and cancellation in any year the General Assembly fails to make an appropriation to make payments under the terms of the lease. [30 ILCS 500/40-25(c)]
Month-to-Month and Holdover. No lease may continue on a month-to-month or other holdover basis for a total of more than 6 months. [30 ILCS 500/40-25(d)]

b) Lessor's Failure to Make Improvements

Each lease that includes a provision for the lessor to make improvements must provide for a penalty upon the lessor's failure to make improvements agreed upon in the lease. The penalty shall consist of a reduction on lease payments equal to the corresponding percentage of the improvement value to the lease value. The penalty shall continue until the lessor complies with the lease and the improvements are accepted by the leasing State agency. [30 ILCS 500/40-55] The penalty amount shall be retained by the State agency.

c) All leases shall be accompanied by a full written disclosure of the identity of every owner or beneficiary having an interest in the premises being leased.

The disclosure shall be subscribed and sworn or otherwise affirmed by an owner, authorized trustee, corporate official, partner, managing agent or other authorized person.
The disclosure shall set forth all ownership interests. By way of example, the disclosure should identify the names of the beneficiaries of a land trust in addition to the trustee, the names of all partners whether general or limited in nature, the names of all members or managers of a limited liability company and the names of all shareholders in a corporation who are entitled to receive more than 5% of the total distributable income of the entity. If the entity is publicly traded and no readily known individual owns more than a 5% interest, then the requirements of this subsection (c) may be met by an officer or managing agent of the entity making an affirmative statement to this effect.
The disclosure shall set forth the identity of any State officer, employee or elected official, or the wife, husband or minor child of that person, having an ownership or beneficial interest under the lease. In the event a person is so set forth, the disclosure shall include a specific designation of the percentage of total distributable income to the person, together with that of the wife, husband or minor child of that person, is entitled to receive from any firm, partnership, association or corporation that is the lessor.
It shall be the responsibility of the lessor to notify the CPO-GS, CMS, SPO or those who conduct leasing activities of any changes in ownership or beneficial interest and to submit updated disclosure statements reflecting the changes within 30 days after the change.

d) Space that is not in compliance with accessibility regulations, or is not capable of being brought in compliance with the installation of minimum essential features of accessibility by the time of occupancy, shall not be considered for use. Each RFI will provide reference to the Illinois Capital Development Board website for applicable technical standards of the Illinois Accessibility Code.

e) Leases may include an option for square footage reduction. When operational needs indicate that reduction in the square footage of a leased property is necessary and in the best interests of the State, as determined by the CPO-GS, a contract for the lease of real property may be amended to reduce the square footage of the leased property.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4030 Purchase Option

Initial leases of all space in free-standing buildings shall include an option to purchase exercisable by the State agency unless the SPO, in consultation with CMS, determines in writing that inclusion of that purchase option is not in the State's best interest. The determination, including the reasons for making the determination, shall be published in the Bulletin. Leases with governmental units and not-for-profit entities are exempt from the requirements of this Section.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4035 Rent Without Occupancy

Except when deemed by PPB to be in the best interest of the State, no State agency may incur rental obligations before having occupancy or possession of the space rented. For the purposes of this Section, the terms "occupancy" and "possession" shall have the same meaning.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4040 Local Site Preferences

Upon the request of the chief executive officer of a unit of local government, leasing preferences may be given to sites located in enterprise zones, tax increment districts or redevelopment districts.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4042 Historic Area Preference

State agencies with responsibilities for leasing, acquiring or maintaining State facilities shall take all reasonable steps to minimize any regulations, policies and procedures that impede the goals of Section 17 of the Capital Development Board Act [20 ILCS 3105]. [30 ILCS 500/45-80]

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4044 Emergency Lease Procurement

Emergency lease procurements may be made pursuant to Section 1.2030.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4505 Procurement Preferences

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts. Any preferences applicable to an individual procurement will be stated in the solicitation for that procurement. If more than one preference is stated in the solicitation for that procurement, Section 45-10 of the Code (Resident Bidders and Offerors) shall apply first.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4510 Resident Vendor Preference

a) "Illinois resident vendor", as used in this Section, means a person authorized to transact business in this State and having a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when any competitive solicitation for a public contract was first advertised or announced, including a foreign corporation duly authorized to transact business in this State that has a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when any competitive solicitation for a public contract is first advertised or announced.

b) In breaking a tie bid or proposal, as described in Section 1.2037, an Illinois resident vendor shall be given the award.

c) An Illinois resident vendor shall be allowed a preference over a non-resident vendor equal to any in-state vendor given or required by the state of the non-resident vendor.

d) If only non-resident bidders or offerors respond, the State agency has the right to specify that Illinois labor and manufacturing locations shall be used as part of the manufacturing process. This specification may be negotiated as part of the solicitation process.

e) If only non-resident bidders are bidding, the purchasing agency has the right to specify that Illinois labor and manufacturing locations be used as part of the manufacturing process. This specification may be negotiated as part of the solicitation process.

f) This Section does not apply to any contract for any project for which federal funds are available for expenditure when its provisions may be in conflict with federal law or federal regulation.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4515 Soybean Oil-Based Ink and Vegetable Oil-Based Ink

a) Contracts requiring the procurement of offset printing services shall specify the use of soybean oil-based ink or vegetable oil-based ink unless an SPO determines another type of ink is required to assure high quality and reasonable pricing of the printed product. [30 ILCS 500/45-15] The SPO will make this determination based on justification submitted by the State agency.

b) This preference does not apply when an agency requires digital printing services. This printing method includes, but is not limited to, the electrostatic process of transferring ink or toner to a substrate and that may use photo imaging plates, photoreceptor drums, or belts that hold an electrostatic charge. Digital printing also includes the process of transferring ink through a print head directly to a substrate, such as ink-jet printers.

c) Offset printing includes lithography, flexography, gravure or letterpress, and involves the process of transferring ink through static or fixed image plates using an impact method of pressing ink into a substrate.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4520 Recycled Supplies

When a public contract is to be awarded to the lowest responsible bidder or offeror, an otherwise qualified bidder or offeror who will fulfill the contract through the use of products made of recycled supplies shall be given preference over other bidders or offerors unable to do so, provided that the cost included in the bid of supplies is equal to or less than other bids or offers, unless the use of the product constitutes an undue practical hardship. Nothing in this Section shall be construed to apply to a construction agency for the purposes of procuring construction and construction-related services. [30 ILCS 500/45-20] The SPO will make this determination based on justification submitted by the State agency.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4525 Recyclable Supplies (Paper)

All paper supplies purchased for use by State agencies must be recyclable paper unless a recyclable substitute cannot be used to meet the requirements of the State agencies or would constitute an undue economic or practical hardship [30 ILCS 500/45-25]. State agencies shall make this determination and shall include this determination in the procurement file.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.4526 Environmentally Preferable Procurement

State agencies shall contract for supplies and services that are environmentally preferable, as that term is defined in Section 45-26(3) of the Code. If, however, contracting for an environmentally preferable supply or service would impose an undue economic or practical hardship on the contracting State agency, or if an environmentally preferable supply or service cannot be used to meet the requirements of the State agency, then the State agency need not contract for an environmentally preferable supply or service. Specifications for contracts, at the discretion of the contracting State agency, may include a price preference of up to 10% for environmentally preferable supplies or service. [30 ILCS 500/45-26(b)]

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4530 Correctional Industries

The CPO-GS shall distribute to each SPO and State agency the list of items that must be purchased from Illinois Correctional Industries (ICI), as determined by the CPO-GS. Procurement from ICI may be made without prior notice or competition.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.4535 Qualified Not-for-Profit Agencies for Persons with Significant Disabilities

a) Purpose

Contracts with qualified not-for-profit agencies for persons with significant disabilities (work centers; see Section 45-35 of the Code) under this Section should promote employment opportunities for persons with significant disabilities while meeting the needs of the State agency. In making a determination to purchase from a qualified work center, State agencies should review the number of jobs performed by persons with significant disabilities and the total amount of the contract. A reasonable amount of subcontracting is allowed under this Part to the extent it does not deter from promoting employment for persons with significant disabilities.

b) Usage

The CPO-GS shall distribute to each SPO and State agency a list of supplies and services available from qualified work centers. Purchases may be made from qualified work centers without prior notice or competition.

c) Preference

The CPO-GS shall identify to each SPO and State agency the supplies or services for which preference must be given to qualified work centers. Prior to conducting a competitive procurement or otherwise contracting for supplies or services on the preference list, the State agency shall contact one or more of the qualified work centers that provide the needed supply or service and attempt to negotiate a fair and reasonable contract at a price not substantially more than had it been competitively bid. If negotiations fail or if circumstances suggest using a qualified work center is not reasonable, the SPO may authorize use of an alternative procurement method.

d) Pricing Approval

Prior to contracting with a qualified work center, the State Use Committee (see Section 45-35(c) of the Code) must determine in an open meeting that the price is fair and reasonable. The State Use Committee shall inform the State agency, in writing, of its determination.

e) Procurement Code Requirements

Qualified work centers that contract with the State must comply with all applicable provisions of the Code.

f) Governmental Joint Purchasing Act [30 ILCS 525] Requirements

Pursuant to Section 4.05 of the Governmental Joint Purchasing Act, when a State agency procures a joint purchase master contract from a qualified not-for-profit agency for persons with significant disabilities, the State agency shall use the sole source method of procurement. The CPO-GS determines that a qualified not-for-profit agency for persons with significant disabilities is a sole economically feasible source due to the organization's employment and empowerment of persons with significant disabilities.

g) Publication to Bulletin

Upon receipt of the State Use Committee written determination, the SPO shall publish notice of purchases in excess of the small purchase threshold to the Bulletin. An agency's decision to purchase from a qualified work center rather than issuing a competitive solicitation is not protestable.

h) Contract Execution

Once a State agency receives the written determination from the State Use Committee that the price of the proposed contract is fair and reasonable and the State agency has posted the notice of purchase to the Bulletin, the SPO may authorize a State agency to enter into a contract with the qualified work center.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4540 Gas Mileage and Flex-Fuel Requirements

a) Specifications for new passenger automobile specifications shall require compliance with minimum gas mileage requirements established in Section 45-40 of the Code. As used in this Section, passenger automobile does not include station wagons, sport utility vehicles (SUVs), crossovers, vans (including mini-vans), 4-wheel drive (including all wheel drive (AWD)) vehicles, emergency vehicles, and police or fire vehicles. Passenger automobiles must achieve at least the minimum average fuel economy in miles per gallon imposed upon manufacturers of vehicles under Title V of the Motor Vehicle Information and Cost Savings Act (15 USC 2001).

b) All gasoline-powered vehicles purchased from State funds must be flexible fuel vehicles or fuel efficient hybrid vehicles. Any vehicle purchased from State funds that is fueled by diesel fuel shall be certified by the manufacturer to run on 5% biodiesel (B5) fuel. [30 ILCS 500/25-75] Station wagons, SUVs, crossovers, vans (including mini-vans), 4-wheel drive (including AWD) vehicles, emergency vehicles, and police and fire vehicles are not exempt.

Flexible fuel vehicles are automobiles or light trucks that operate on either gasoline or E-85 (85% ethanol, 15% gasoline) fuel.
Fuel efficient hybrid vehicles are automobiles or light trucks that use a gasoline or diesel engine and an electric motor to power and gain a minimum of 20% increase in combined USEPA city/highway fuel economy over an equivalent or most-similar conventionally-powered model.

c) Beginning January 1, 2016, 25% of all vehicles purchased with State funds shall be vehicles fueled by electricity, compressed natural gas, liquid petroleum gas, or liquid natural gas. This provision shall not apply to vehicles purchased by the Illinois Department of Corrections or the Illinois State Police.

d) The CPO-GS or SPO may exempt a procurement from the requirements of subsections (a), (b) and (c) when a State agency demonstrates a need for a non-compliant vehicle in writing.

e) In awarding contracts requiring the procurement of vehicles, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of vehicles powered by ethanol produced from Illinois corn or biodiesel fuels produced from Illinois soybeans. [30 ILCS 500/45-60]

f) The CPO-GS may require use of a uniform form or format for the SPO's determination that an exemption is warranted.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4545 Small Business

a) Set-Aside

The CPO-GS may determine categories of construction, supplies or service procurements that will be set aside for small businesses in Illinois. A set-aside designation shall be for a stated period of time. An SPO may determine to set aside for small business individual contracts not in a set-aside category.

b) Small Business List

The CPO-GS may develop his or her own list, or may use a list maintained by another State agency, of vendors that meet the criteria of small business. Vendors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses shall submit information as specified verifying that the vendor qualifies as a small business under this Part. A business that fits the definition of small on the day of bid, offer, or proposal opening will be considered small at the time of award and may have the resulting contract and any renewals, even if the business no longer qualifies as a small business. When utilizing vendor lists for soliciting small business vendors, all vendors shall be solicited under the commodity codes representing the supplies or services being solicited.

c) Required Use

Any procurement proposed for set aside for small businesses shall be so identified in the Bulletin notice and the solicitation documents. Bids or proposals received from large businesses will be rejected as nonresponsive.

d) Withdrawal of Set-Aside

If the SPO determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the SPO may reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question. When a small business set-aside is withdrawn, notification shall be published in the Bulletin with an explanation. After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with this Part but without the small business designation.

e) Criteria for Small Business

Unless the CPO-GS provides a definition for a particular procurement that reflects industrial characteristics, a small business is a business that is independently owned and operated and is not dominant in its field of operation.

A) A wholesale business is a small business if its annual sales for its most recently completed fiscal year do not exceed $13,000,000.

B) A retail business or business selling services is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $8,000,000.

C) A manufacturing business is a small business if it employs no more than 250 persons. A manufacturing business shall calculate how many people it employs by determining its average full-time equivalent employment, based on the number of persons employed on a full-time, part-time, temporary or other basis, for its most recently ended fiscal year. If a manufacturing business has been in existence for less than a full fiscal year, its average employment shall be calculated for the period through one month prior to the bid or proposal due date.

D) A construction business is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $14,000,000.

E) If a business is any combination of retailer, wholesaler or construction business, then the annual sales for each component may not exceed the higher of $13,000,000 for a wholesaler, $8,000,000 for a retailer, $14,000,000 for a construction business, or the amounts shown in Section 45-45 of the Code. For example, a business that is both a retailer and a wholesaler may not have total sales exceeding $21,000,000 and the retail component may not exceed $8,000,000 and the wholesale component may not exceed $13,000,000.

A small business in Illinois is defined as an entity whose business is headquartered in Illinois, that meets the criteria in subsection (e)(1), and is a:

A) sole proprietor whose primary residence is in Illinois;

B) business incorporated or organized as a domestic corporation under the Business Corporation Act of 1983 [805 ILCS 5/1.80];

C) business organized as a domestic partnership under the Uniform Partnership Act of 1997 [805 ILCS 206];

D) business organized as a domestic limited partnership under the Uniform Limited Partnership Act of 2001 [805 ILCS 215];

E) business organized under the Limited Liability Company Act [805 ILCS 180]; or

F) business organized under the Professional Limited Liability Company Act [805 ILCS 185].

A small business that is not dominant in its field of operations. This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
Businesses artificially divided to qualify as a small business will be disallowed. When computing the size status of a vendor and whether the vendor qualifies as a small business, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates, concerns and related entities shall be included. Concerns and related entities are affiliates of each other when one directly or indirectly controls or has the power to control the other, or when a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists. In determining whether concerns and related entities are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management, identity of interest (substantially identical business or economic interests such as family members, individuals or firms with common investments, or firms that are economically dependent through contractual or other relationships) and contractual arrangements. In determining whether affiliation exists, the CPO-GS will consider the totality of the circumstances, and may find affiliation even though no single factor is sufficient to constitute affiliation. A franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

f) Small Business Specialist

The CPO-GS shall designate a small business specialist who shall have the duties set forth in Section 45-45(e) of the Code and who shall also act as coordinator of small business. The designated small business specialist shall compile statistics provided by the State agency needed to make the small business annual report to the General Assembly required under Section 45-45(f) of the Code.

g) Subcontracting

A small business awarded a contract procured as a small business set-aside may subcontract a portion of that contract to another small business meeting the criteria in subsection (e).
A small business awarded a contract procured as a small business set-aside may subcontract no more than 49% of the value of the contract to a business that does not meet the criteria in subsection (e).

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.4550 Illinois Agricultural Products

In awarding contracts requiring the procurement of agricultural products, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of agricultural products grown in Illinois. [30 ILCS 500/45-50]

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4555 Corn-Based Plastic Products

In awarding contracts requiring the procurement of plastic products, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of plastic products made from Illinois corn by-products. [30 ILCS 500/45-55]

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4557 Disabled Veterans

It is the goal of the State to promote and encourage the continued economic development of small businesses owned and controlled by qualified veterans and that qualified service-disabled veteran-owned small businesses (SDVOSB) and veteran-owned small businesses (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 the goal to be awarded to SDVOSB and VOSB. [30 ILCS 500/45-57] The CPO-GS will inform each SPO and State agency of procedures established to implement this provision.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4570 Contracting with Businesses Owned and Controlled by Minorities, Women, and Persons with Disabilities

Procurements made under the Code are subject to the requirements of the BEP Act. Each agency is responsible for establishing goals and, as applicable, taking other action in accordance with the Act, such as ensuring solicitation are written to minimize barriers to participation and that diverse vendors are included in solicitation outreach and training. Each solicitation conducted by an agency, regardless of the source selection method, shall consider the goals and policies set forth in the BEP Act, 44 Ill. Adm. Code 10, and any other laws of the State.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4575 Domestic Products

a) This Section applies unless an exception is provided by statute, or in the case of a small, emergency or sole economically feasible source situation.

b) This Section applies to supplies purchased by the State that have undergone some manufacturing process that changes the raw material or components into a different product. The following examples show how to interpret this Section:

If the State needs iron ore, this Section would not apply because the State would be asking for a raw material.
If the State needs a steel ingot, the purchase would be subject to this Section as the steel ingot was subject to a manufacturing process. The iron ore used in manufacturing the ingot would not be subject to any domestic restriction.
If the State needs a steel I-Beam, the I-Beam would be subject to this Section. The iron ore and steel used in creating the I-Beam would not be subject to any domestic restriction.
If the State needs a structure made of steel I-Beams, the assembly would have to be done domestically. The iron ore, steel and I-Beams used in building the structure would not be subject to any domestic restriction.

c) Specifications for manufactured supplies shall include a reference to the preference established in this Section.

d) The preference shall be as follows:

The low bid or most advantageous proposal shall be identified without regard to whether the product is a domestic product.
In the event of a tie in a competitive sealed bid procurement, the vendor that certifies it will provide domestic supplies shall be given preference.
If the low bid or most advantageous proposal does not contain a certification that the supply items are domestic, then any responsive and responsible vendor that is within 2% of the identified vendor's price that has made that certification shall be evaluated as though its price was 2% lower, subject to a maximum dollar value of $50,000.
The winning vendor will be determined after application of the preference.
Notwithstanding the preference outlined in this subsection (d), if the appropriate SPO determines that the price differential calculated using the preference is not acceptable given the particular procurement and the economic circumstances, the award may be conditioned on receipt of an acceptable price reduction. If the price cannot be reduced to an acceptable level, the original low priced or most advantageous proposal may be selected for award.

e) Each procuring agency shall include in the procurement file documentation showing the application of any preference given and any determination that the supplies involved in the purchase were not subject to the Procurement of Domestic Products Act [30 ILCS 517].

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4578 Bio-Based Products

When a State contract is to be awarded to the lowest responsible bidder, an otherwise qualified bidder who will fulfill the contract through the use of bio-based products may be given preference over other bidders unable to do so, provided that the cost included in the bid of bio-based products is not more than 5% greater than the cost of products that are not bio-based. [30 ILCS 500/45-75]

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4579 Notice of Preferences

The Bulletin and solicitation document shall state whether a preference applies or may apply and the amount or type of preference.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.4595 Hubzone Business Contracts

a) A State agency shall provide a 2% price preference for a HUBZone business that is responding to an Invitation for Bid or Request for Proposal.

b) A State agency may provide up to a 10% price preference for a HUBZone business that is responding to an IFB or RFP. The State agency shall specify the price preference in the solicitation document.

c) A HUBZone business must include evidence of its HUBZone qualification with its bid or offer if it's claiming a HUBZone price preference under this Section.

d) The SPO shall publish, in the notice of award, the percentage of the HUBZone price preference for each contract awarded through this Section.

e) Should a contractor no longer qualify as a HUBZone business during the term of a contract that was awarded using the HUBZone price preference, the State agency may void the contract.

f) A contract may not be renewed if the contractor no longer qualifies as a HUBZone business and the contract was awarded using the HUBZone price preference.

History

Source: Added at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.4600 Bid Preference for Illinois Businesses

a) In procuring construction services for projects with a total value that exceeds the small purchase maximum established by Section 20-20 of the Code, construction agencies shall provide a bid preference to a responsive and responsible bidder that is an Illinois business as defined in Section 45-105(g) of the Code. The construction agency shall allocate to the lowest bid by an Illinois business that is responsible and responsive a bid preference of 4% of the contract base bid. Subsection 45-105(e) of the Code applies only to projects where a business that is not an Illinois business submits a bid. [30 ILCS 500/45-105(e)]

b) The term "Illinois business", as used in this Section, has the same meaning ascribed in Section 45-105(g) of the Code.

c) "Headquartered", as used in this Section 1.4600 and Section 45-105(g) of the Code, means having a physical location, excluding job site trailers, within the State where the executives for the business, or high-level officers for a corporation, direct, control, and coordinate the business' or corporation's activities.

History

Source: Added at 50 Ill. Reg. 2498, effective February 9, 2026

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5002 Continuing Disclosure; False Certification

a) All contractors and subcontractors have a continuing obligation to supplement the disclosures and certifications required by this Section for the duration of the contract and shall report any changes to their disclosures or certifications to the agency and CPO-GS. Multi-year contracts and subcontracts are subject to the annual recertification requirements of Section 50-2 of the Code. Every person that has entered into a multi-year contract and every subcontractor with a multi-year subcontract subject to the Code, shall certify, by July 1 of each fiscal year covered by the contract after the initial fiscal year, to the responsible CPO-GS whether it continues to satisfy the requirements of Article 50 of the Code pertaining to eligibility for a contract award. If a contractor or subcontractor is not able to truthfully certify that it continues to meet all requirements, it shall provide with its certification a detailed explanation of the circumstances leading to the change in certification status. A contractor or subcontractor that makes a false statement material to any given certification required under Article 50 of the Code is, in addition to any other penalties or consequences prescribed by law, subject to liability under the Illinois False Claims Act [740 ILCS 175] for submission of a false claim. [30 ILCS 500/50-2]

b) The CPO-GS may prescribe a standard format for certification and may include certifications as part of the prequalification process.

c) Should a vendor be unable to certify that it continues to meet requirements of Article 50 of the Code, the relevant information shall be submitted to the SPO for review and disposition.

d) Annual certification through the vendor portal pursuant to Section 1.535 satisfies the requirements of this Section.

e) No continuing certification is required if a contractor or subcontractor continues to meet all the requirements of Article 50 of the Code or if the work under the contract or subcontract is substantially completed.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5005 Bribery

a) Prohibition

No person or business shall be awarded a contract or subcontract who:

Has been convicted under the laws of Illinois or any other state of bribery or attempting to bribe an officer or employee of the State of Illinois or any other state in that officer's or employee's official capacity; or
Has made an admission of guilt of that conduct that is a matter of record but has not been prosecuted for that conduct. [30 ILCS 500/50-5(A)]

b) Businesses

No business shall be barred from contracting with any unit of State or local government, or subcontracting under such a contract, as a result of a conviction under this Section of any employee or agent of the business if the employee or agent is no longer employed by the business and:

The business has been finally adjudicated not guilty; or
The business demonstrates to the governmental entity with which it seeks to contract, or that is a signatory to the contract to which the subcontract relates, and that entity finds that the commission of the offense was not authorized, requested, commanded or performed by a director, officer or high managerial agent on behalf of the business, as provided in Section 5-4(a)(2) of the Criminal Code of 2012. [30 ILCS 500/50-5(b)]

c) Conduct on Behalf of Business

For purposes of this Section, when an official, agent or employee of a business committed the bribery or attempted bribery on behalf of the business and in accordance with the direction or authorization of a responsible official of the business, the business shall be chargeable with the conduct. [30 ILCS 500/50-5(c)]

d) Certification

Every bid, offer, response, submission, quotation or quote submitted to every contract executed by the State, every subcontract subject to Section 20-120 of the Code, and every vendor's submission to a vendor portal shall contain a certification by the bidder, offeror, respondent, submitter, person who submits a quotation or quote, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, respondent, submitter, person who submits a quotation or quote, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-5 of the Code, and acknowledges that the CPO-GS may declare the related contract void if any certifications required by that Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid, offer, response, submission, quotation or quote and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. A contractor or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony. [30 ILCS 500/50-5(d)]

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5010 Felons

a) Unless otherwise provided, no person or business convicted of a felony shall do business with the State of Illinois or any State agency, or enter into a subcontract, from the date of conviction until 5 years after the date of completion of the sentence for that felony, unless no person held responsible by a prosecutorial office for the facts upon which the conviction was based continues to have any involvement with the business. [30 ILCS 500/50-10]

b) Every bid, offer, response, submission, quotation or quote submitted to and contract executed by the State and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, respondent, submitter, contractor, or subcontractor, respectively, that the bidder, offeror, respondent, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges the CPO-GS may declare the related contract void if any of the certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid, offer, or response and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-10.5]

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5011 Debt Delinquency

a) No person shall submit a bid, offer, or response for, or enter into, a contract or subcontract under the Code, or make a submission to a vendor portal, if that person knows or should know that he or she or any affiliate is delinquent in the payment of any debt to the State, unless the person or affiliate has entered into a deferred payment plan to pay off the debt. [30 ILCS 500/50-11(a)] For purposes of this Section, terms shall have the meanings ascribed in Section 50-11 of the Code.

b) Every bid, offer, or response submitted to the State, every vendor's submission to a vendor portal, every contract executed by the State, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, contractor or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor or subcontractor and its affiliate is not barred from being awarded a contract or subcontract under this Section and acknowledges that the CPO-GS may declare the related contract void if any of the certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-11(b)]

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5012 Collection and Remittance of Illinois Use Tax

a) No person shall enter into a contract with a State agency or enter into a subcontract unless the person and all affiliates of the person collect and remit Illinois Use Tax on all sales of tangible personal property into the State of Illinois in accordance with the provisions of the Illinois Use Tax Act [35 ILCS 105], regardless of whether the person or affiliate is a "retailer maintaining a place of business within this State" as defined in Section 2 of the Use Tax Act. [30 ILCS 500/50-12] For purposes of this Section, terms shall have the meanings ascribed in Section 50-12 of the Code.

b) Every bid, offer, response, submission, quotation or quote submitted to the State, every submission to a vendor portal, every contract executed by the State, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, respondent, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor, or subcontractor is not barred from bidding for or entering into a contract under Section 50-12(a) of the Code and acknowledges that the CPO-GS may declare the related contract void if any of the certifications completed pursuant to Section 50-12(b) of the Code are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-12]

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5013 Conflicts of Interest Prohibited by the Code

a) Any bid, proposal, offer of acceptance, or proposed contract must be reviewed for conflicts of interest pursuant to Section 50-13 of the Code. If a conflict is found, no contract will be executed unless the CPO requests and is granted an exemption by the Executive Ethics Commission under Section 50-20 of the Code.

Office or Employment

It is unlawful for any person holding an elective office in this State, holding a seat in the General Assembly, or appointed to or employed in any of the offices or agencies of State government and who receives compensation for such employment in excess of 60% of the salary of the Governor of the State of Illinois, or who is an officer or employee of the Capital Development Board or the Illinois Toll Highway Authority, or who is the spouse or minor child of any such person, to have or acquire any contract, or any direct pecuniary interest in the contract therein, whether for stationery, printing, paper, or any services, materials, or supplies, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois or in any contract of the Capital Development Board or the Illinois Toll Highway Authority. [30 ILCS 500/50-13(a)]

Financial Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person as described in subsection (a)(1) is entitled to receive more than 7½% of the total distributable income or an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/50-13(b)]

Combined Financial Interests

It is unlawful for any firm, partnership, association or corporation, in which any person listed in subsection (a)(1) together with his or her spouse or minor children is entitled to receive more than 15%, in the aggregate, of the total distributable income or an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/50-13(c)]

b) For the purpose of this Part, an individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise received a direct financial benefit in conjunction with performance of a contract, including finders fees and commission payments.

c) For the purpose of this Part, "distributable income" means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, which is distributed to those entitled to receive a share of the income. In the case of a for-profit corporation, distributable income means "dividends". When calculating entitlement to distributable income the entitlement shall be determined at the end of the company's most recent fiscal year.

d) This Section applies to those elected to an office of Illinois State government. This Section does not apply to those elected to local government offices, including school districts, nor does it apply to those elected to Federal offices in this State. This Section does not apply to contracts with licensed professionals, provided those contracts are competitively bid.

e) Additional exemptions to the application of this Part are listed in Section 50-13(f) of the Code.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5014 Environmental Protection Act Violations

a) Unless otherwise provided, no person or business found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act [415 ILCS 5] shall do business with the State of Illinois or any State agency or enter into a subcontract from the date of the order containing the finding of violation until 5 years after that date, unless the person or business can show that no person involved with the violation continues to have any involvement with the business. [30 ILCS 500/50-14(a)]

b) A person or business otherwise barred by Section 50-14(a) of the Code from doing business with the State of Illinois and any State agency or any subcontractors under the Code may be allowed to do business with the State of Illinois or any State agency if it is shown that there is no practicable alternative to the State to contracting with that person or business. [30 ILCS 500/50-14(b)]

c) Every bid, offer, or response submitted to the State, every contract executed by the State, every submission to a vendor portal, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, respondent, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under Section 50-14(c) of the Code and acknowledges that the contracting State agency may declare the related contract void if any of the certifications completed pursuant to that subsection (c) are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-14(c)]

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5015 Negotiations for Future Employment

a) It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 500/50-15(a)]

b) An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an independent contractor is in a "continual contractual relationship" from the effective date of the contract until such time as the contract is terminated.

c) An individual who performs services pursuant to a contract and who meets the requirements of an "independent contractor" as opposed to an "employee" is in a "continual contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the State must act to terminate, or has a definite term of at least three months.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5020 Exemptions

If the SPO finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the SPO shall forward to the CPO-GS the name of the vendor and a description of the proposed contract and of the conflict, and shall state why an exemption should be granted. The CPO-GS shall decide whether to disapprove the contract or submit the files to the Executive Ethics Commission to determine whether an exemption should be granted in accordance with Section 50-20 of the Code. The CPO-GS may request the State agency's position on the conflict of interest to assist in the CPO-GS' decision.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.5021 Bond Issuances

a) Definitions. For the purposes of this Section 1.5021, the following listed terms shall have the same meaning as in the Code and as further defined in this subsection (a).

"Entity" means brokers, dealers and municipal securities dealers as defined in, and subject to, Rule G-37 and Rule G-38 of the Municipal Securities Rulemaking Board (MSRB).
"Independent Consultant" means a person used by the entity to obtain or retain securities business through direct or indirect communication by the person with a State official or employee (including an official or employee of the State agency) on behalf of the entity when the communication is undertaken by the person in exchange for or with the understanding of receiving payment from the entity or other person. Independent Consultant does not include:

A) a finance professional employed by the entity; or

B) a person whose sole basis of compensation from the entity is the actual provision of legal, accounting or engineering advice, services or assistance in connection with the securities business that the entity seeks to obtain or retain. [30 ILCS 500/50-21(a)]

"Issuance of bonds or other securities by the State agency" means the purchase or placement on other than a competitive bid of a primary offering of the State agency's general obligation municipal securities.
"Issuance by the State agency" means the issuance of bonds or other securities by the State agency when acting as a governmental issuer specified in MSRB Rule G-37.
"MSRB Rule G-37" and "MSRB Rule G-38" refer to the Municipal Securities Rulemaking Board rules in effect on August 6, 2012, or any successor rules adopted by the MSRB on the same subject after August 6, 2012, as provided in Section 50-21(b) and (c) of the Code. MRSB Rule 37 went into effect April 25, 1994, and MRSB Rule G-38 went into effect on August 29, 2005. Copies of G-37 and G-38 are available to the public at the MSRB website: http://www.mrsb.org, at the United States Security and Exchange Commission's website: http://sec.gov, and at the office of the CPO-GS. (See 30 ILCS 500/50-21(b) and (c).)

b) Use of Independent Consultants

Section 50-21(a) of the Code prohibits the State agency from entering into a contract with respect to the issuance of bonds or other securities by the State agency with any entity that uses an independent consultant to obtain or retain securities business through direct or indirect communications by the person with a State official or employee, including an official or employee of the State agency. Use of an independent consultant is also prohibited by MSRB Rule G-38. Every contract between the State agency and an entity relating to the issuance of bonds or other securities by the State agency shall include a certification that the entity did not use an independent consultant to obtain the contract and that the entity has not been found to have knowingly violated in Illinois MSRB Rule G-38 (or any successor rule) with respect to the prohibition on obtaining or retaining municipal securities business.
In the event a federal agency finds that an entity has knowingly violated MSRB Rule G-38 in the State of Illinois, the CPO-GS shall bar that entity from participating in any contract with respect to the issuance of bonds or other securities by any of the State agencies for a period of one year as specified in Section 50-21(c) of the Code.

c) Prohibited Political Contributions

Section 50-21(b) of the Code requires that every contract between the State agency and an entity relating to the issuance of bonds or other securities by the State agency include a certification that the entity is, and will remain for the duration of the contract in compliance with the MSRB Rule G-37 requirement for reporting political contributions and that the entity has not been found to have knowingly violated in Illinois MSRB Rule G-37 (or any successor rule) with respect to the making of prohibited political contributions or payments. Failure to remain in compliance throughout the term of the contract shall make the contract voidable by the CPO-GS.
In the event a federal agency finds that an entity has knowingly violated MSRB Rule G-37 in the State of Illinois by making prohibited political contributions, the CPO-GS shall impose a penalty that is at least twice the fine assessed by the federal agency. In addition, the CPO-GS shall bar the entity from participating in any contract with respect to the issuance of bonds or other securities by any of the State agencies for a period of one year as specified in Section 50-21(c) of the Code.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.5023 Other Conflicts of Interest

a) Except as otherwise specified in the Public Officer Prohibited Activities Act [50 ILCS 105], no officer of a State agency or member of a State agency's governing board shall be directly or indirectly interested in any contract to be made by that State agency's governing board for any purposes whatsoever.

b) Except as otherwise specified in the Public Officer Prohibited Activities Act, a State agency may not award a contract to an officer or employee of the State agency; a member of the State agency's governing board; a firm, partnership, association or corporation, the owner or principal owners or major officers or primary employees of which are officers or employees of the State agency or members of the governing board of the State agency; or members of the immediate family of an officer or employee of the State agency or a member of the governing board of the State agency, unless the contract is deemed essential to the State agency operations and is approved by the State agency's head and the CPO-GS. These approvals shall be filed with the contract and shall be made part of the procurement file.

c) Any State agency that has its owns policies regarding procurement conflict of interest relative to its own employees must provide notice of any potential conflict of interest to the SPO along with the State agency's policy. This information may be used by the SPO when considering whether to award a contract.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5030 Revolving Door Prohibition

a) CPOs, SPOs, Procurement Compliance Monitors, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to the State agency most recently employing them in an affected position for a period of at least 6 months. The prohibition includes but is not limited to: lobbying the procurement process; specifying, bidding, proposing bid, proposal, or contract documents; on their own behalf or on behalf of any firm, partnership, association, or corporation. This prohibition applies to all persons who terminate an affected position on or after January 1, 1999. [30 ILCS 500/50-30]

b) The CPO-GSs shall identify in writing those designees whose job, or whose position description, is at least 51% directly related to procurement. Activities directly related to procurement include, but are not limited to, drafting specifications, preparing solicitations, evaluating offers, negotiating contracts, administering contracts and supervising any of the foregoing. This information shall be maintained for a period of at least 2 years following the end or revocation of the designation.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5035 Disclosure of Financial Interests and Potential Conflicts of Interest

a) Disclosures of financial interests and potential conflicts of interest shall be obtained for all submissions to a vendor portal and from all bidders, offerors, vendors, or contractors. [30 ILCS 500/50-35(a)]

For purposes of Section 50-35(a) of the Code, "a bid, offer or response from responsive bidders, offerors, respondents, vendors, or contractors" means bids, offers, and quotes received pursuant to any source selection method, except for sole source and emergency procurements, and that has an annual value of more than $50,000.
Disclosures are not required in sole source and emergency contracts, but shall be obtained in whole or in part when practical and when the annual value exceeds $50,000.
Disclosures shall be obtained for small purchases exceeding $50,000 annually, except as otherwise provided in this Section. If a small purchase could qualify as an emergency or sole source, disclosures shall be obtained when practical.
In circumstances in which the vendor refuses or is unable to provide disclosures, the SPO may authorize the State agency to move forward with the transaction. In granting that authorization, the State agency must provide documentation of efforts to obtain compliance in a form prescribed by the PPB and CPO-GS.

b) For purposes of:

Section 50-35(b) of the Code, "parent entity" means an entity that owns 100% of the bidding entity.
Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

c) "Distributable" or "distributive income" means the income of a company after payment of all expenses, including employee salaries and bonuses, and retained earnings that is distributed to those entitled to receive a share of that income. In the case of a for-profit corporation, distributable income means "dividends". When calculating entitlement to distributable income, the entitlement shall be determined at the end of the company's most recent fiscal year.

d) "Personal services" shall be any contract for services subject to the Code, including, by way of example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

e) "Subject to federal 10K reporting" means subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934. "10K disclosure" means a report required under section 13 or 15(d) of the Securities Exchange Act of 1934 (15 USC 78a et seq.).

f) New disclosures are required on contract renewals. New disclosures are not required for contract amendments.

g) 10K Disclosures

Any vendor subject to federal 10K reporting requirements may submit its 10K to the State in satisfaction of the disclosure requirement of Section 50-35(b) of the Code. The vendor may be required to identify the specific sections or parts in the 10K disclosure containing information, if any, pertaining to those who have an ownership interest or an interest in the distributable income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State. If the financial interest or conflict of interest information requested by the State is not in the 10K, or in a document that may be submitted to the SEC in conjunction with, or in lieu of, the 10K, then that additional documentation shall be provided as well.
10K disclosures are available for public review. Any potential conflict of interest identified by the public and brought to the attention of the CPO-GS or SPO shall be investigated.
In circumstances in which a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code, the SPO or designee may consider information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure in determining whether a potential conflict of interest exists.

h) Form of Disclosure

The form of disclosure shall be prescribed by the CPO-GS and shall include at least the names, addresses and dollar or proportionate share of ownership of each person identified in this Section, their instrument of ownership or beneficial relationship, and notice of any potential conflict of interest resulting from the current ownership or beneficial relationship of each person identified in this Section having any of the following relationships:

A) State employment, currently or in the previous 3 years, including contractual employment of services;

B) State employment of spouse, father, mother, son or daughter, including contractual employment for services in the previous 2 years;

C) Elective status: the holding of elective office in the State of Illinois, the government of the United States, any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois currently or in the previous 3 years;

D) Relationship to anyone holding elective office currently or in the previous 2 years, including spouse, father, mother, son or daughter;

E) Appointive office: the holding of any appointive government office of the State of Illinois, the United States of America, or any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois that entitles the holder to compensation in excess of expenses incurred in the discharge of that office currently or in the previous 3 years;

F) Relationship to anyone holding appointive office currently or in the previous 2 years, including spouse, father, mother, son or daughter;

G) Employment, currently or in the previous 3 years, as, or by, any registered lobbyist of the State government;

H) Relationship to anyone who is or was a registered lobbyist in the previous 2 years, including spouse, father, mother, son or daughter;

I) Compensated employment, currently or in the previous 3 years, by any registered election or re-election committee registered with the Secretary of State or any county clerk in the State of Illinois, or any political action committee registered with either the Secretary of State or the Federal Board of Elections;

J) Relationship to anyone, including spouse, father, mother, son or daughter, who is or was a compensated employee in the last 2 years of any registered election or re-election committee registered with the Secretary of State or any county clerk in the State of Illinois, or any political action committee registered with either the Secretary of State or the Federal Board of Elections. [30 ILCS 500/50-35(b)(1-10)]

The disclosures required under this Section also include the name and address of each lobbyist required to register under the Lobbyist Registration Act [25 ILCS 170] and other agent of the bidder or offeror who is not identified under subsection (a) and who has communicated, is communicating, or may communicate with any State officer or employee concerning the bid or offer. The disclosure under this subsection (h)(2) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-1)]
The disclosure required under this Section must also include, for each of the persons identified in subsection (h)(1) or (2), each of the following that occurred within the previous 10 years: debarment from contracting with any governmental entity; professional licensure discipline; bankruptcies; adverse civil judgments and administrative findings; and criminal felony convictions. The disclosure under this subsection (h)(3) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-2)]

i) Intent of Disclosure

Determination by Procurement Officer

When an alleged conflict of interest is identified, discovered or reasonably suspected, it shall be reviewed by the CPO-GS or SPO, who will send the contract to the PPB. The PPB shall recommend to the CPO-GS whether to allow or void the contract, bid, offer or subcontract weighing the best interest of the State of Illinois. If the CPO-GS disagrees with the PPB's recommendation to void a contract or void a bid or offer, the Executive Ethics Commission will hold a hearing. No contract shall be awarded before a hearing if the PPB recommends a contract or bid or offer be voided. This written determination shall become a publicly available part of the contract, bid or proposal file.

Requirements for Reasonable Care and Diligence

These thresholds for disclosure do not relieve the CPO-GS, SPO or their designees from reasonable care and diligence for any contract, bid, offer or proposal. The CPO-GS, SPOs or their designees shall be responsible for using any reasonably known and publicly available information to discover any undisclosed potential conflict of interest and act to protect the best interest of the State of Illinois. [30 ILCS 500/50-35(e)]

Inadvertent or Accidental Failure to Fully Disclose

Inadvertent or accidental failure to disclose shall render the contract, subcontract, bid, proposal or relationship voidable by the CPO-GS if he or she deems it in the best interest of the State of Illinois and, at his or her discretion, may be cause for barring from future contracts, subcontracts, bids, proposals or relationships with the State for a period of up to 2 years. [30 ILCS 500/50-35(f)]

Intentional, Willful or Material Failure to Disclose

Intentional, willful or material failure to disclose shall render the contract, subcontract, bid, proposal or relationship voidable by the CPO-GS if he or she deems it in the best interest of the State of Illinois and shall result in debarment from future contracts, subcontracts, bids, proposals or relationships with the State for a period of not less than 2 years and not more than 10 years. Reinstatement after 2 years and before 10 years must be reviewed and commented upon by the CPO-GS, who must rule in writing whether and when to reinstate.

Other Procurements

In addition, all disclosures shall note any other current or pending contracts, proposals, subcontracts, leases or other ongoing procurement relationships the bidding, proposing, offering or subcontracting entity has with any other unit of State government and shall clearly identify the unit and the contract, proposal, lease or other relationship. [30 ILCS 500/50-35(h)]

Continuing Obligation

The contractor or bidder has a continuing obligation to supplement the disclosure required by this Section throughout the bidding process or during the term of any contract. [30 ILCS 500/50-35(i)]

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5036 Disclosures of Business in Iran

a) Each bid, offer or proposal submitted for a State contract, other than a small purchase, shall include a disclosure of whether the bidder, offeror or proposing entity, or any of its corporate parents or subsidiaries, within the 24 months before submission of the bid, offer or proposal had business operations that involved contracts with, or provision of supplies or services to, the Government of Iran, companies in which the Government of Iran has a direct or indirect equity share, consortiums or projects commissioned by the Government of Iran, or companies involved in consortiums or projects commissioned by the Government of Iran and:

More than 10% of the company's revenue produced in or assets allocated in Iran involve oil-related activities or mineral extraction activities; less than 75% of the company's revenues produced or assets located in Iran involve contracts with or provision of oil-related or mineral-extraction products or services to the Government of Iran or a project or consortium created exclusively by that government; and the company has failed to take substantial action; or
The company has, on or after August 5, 1996, made an investment of $20 million or more, or any combination of investments of at least $10 million each that in the aggregate equals or exceeds $20 million in any 12-month period, that directly or significantly contributes to the enhancement of Iran's ability to develop petroleum resources of Iran. [30 ILCS 500/50-36(b)]

b) A bid, offer or proposal that does not include the disclosure required by subsection (a) shall not be considered responsive. An SPO may consider the disclosure when evaluating the bid, offer or proposal or awarding the contract. [30 ILCS 500/50-36(c)]

c) The CPO-GS shall provide the State Comptroller with the names of each entity disclosed under subsection (a) as doing business or having done business in Iran. The State Comptroller shall post that information on his or her official website. [30 ILCS 500/50-36(d)]

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5037 Vendor Registration, Certification and Prohibition on Political Contributions

a) Introduction

Illinois statute [10 ILCS 5/9-35 and 30 ILCS 500/20-160 and 50-37]:

A) restricts political contributions by vendors, affiliated persons, and affiliated entities;

B) requires registration with the State Board of Elections (SBEL); and

C) requires solicitation and contract certifications relative to the requirements of the statutes.

This Section supplements requirements found in statutes and does not excuse compliance with any of those requirements.

b) General Registration Requirements

These requirements apply to contracts, bids and proposals that are subject to the Code:

A) Bids/proposals referenced in this Section are those submitted in response to a competitive solicitation that is posted to the Bulletin, regardless of the value assigned to the procurement.

B) Bids and proposals include pending bids and proposals.

C) These requirements generally apply to a vendor whose existing State contracts have an aggregate value in excess of $50,000, or whose aggregate value of bids/proposals for State contracts exceeds $50,000, or whose aggregate value of State contracts and bids/proposals exceeds $50,000.

D) This value is calculated on a calendar-year basis.

On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/proposals. Vendors must register with SBEL when the vendor determines that the value of the contracts and bids/proposals meets the threshold for registration.
An "executive employee" means:

A) The President, Chairman of the Board, Chief Executive Officer and/or other individuals who fulfill equivalent duties as the President, Chairman of the Board, or Chief Executive Officer; and/or

B) Any employee whose compensation is determined directly, in whole or in part, by the award or payment of contracts by a State agency to the entity employing the employee, irrespective of the employee's title or status in the business entity. For the purposes of this subsection (b)(3)(B), compensation determined directly by award or payment of contracts means a payment over and above regular salary that would not be made if it were not for the award of the contract.

c) Bids and Proposals

In order to be considered for award, a vendor who meets the requirements for registration must be registered with SBEL as of the date the bid or offer is due and shall provide a copy of the Registration Certificate or be able to produce the Registration Certificate on that date.
If a vendor is not registered by the date the bid or offer is due, the SPO shall reject the bid or offer as non-responsive.
Prior to award or execution of contract, the SPO or a designee of the SPO shall verify that the vendor who meets the requirements for registration has registered with SBEL and shall document vendor compliance.

d) Contracts

Documentation of vendor compliance must be in the procurement file in relation to any contract for which a vendor is required to register as set forth in this subsection (d), unless the vendor certifies it is not required to register.

For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals exceeds $50,000, the vendor must provide documentation of vendor compliance upon request and make the appropriate contract certification, if it has not already done so. The Registration Certificate or other evidence of vendor compliance may be provided by reference to and incorporation of the vendor's prequalification by the CPO-GS.
A State agency shall identify in the solicitation whether the contract is estimated to exceed $50,000 annually. Vendors submitting bids or offers for master contracts estimated to exceed $50,000 annually regardless of consumption are required to register with SBEL.
For indefinite quantity/estimated value contracts that are not estimated to exceed $50,000 annually, a vendor who is otherwise not required to register shall register with SBEL when the value of orders placed pursuant to an indefinite/estimated value contract plus all other contracts and bids/proposals exceeds $50,000. The vendor shall register with SBEL within 10 business days after orders exceed $50,000.
For change order, if the value of the change order, by itself or in combination with the contract being renewed plus other contracts and bids/proposals, exceeds $50,000, the vendor must provide the Registration Certificate or other evidence of vendor compliance upon request and make the appropriate contract certification, if it has not already done so.
Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications, and the vendor must supply the Registration Certificate or other evidence of vendor compliance upon request. If any violation by the vendor is not cured within 5 business days after receipt of notification of the violation, the contract is voidable by the State without penalty.
Contract certification required by Section 20-160 of the Code shall be included in or added to each contract that must be filed with the State Comptroller pursuant to Section 20-80 of the Code and those written two-party contracts that need not be filed with the Comptroller. Agencies may require written confirmation of the rule-imposed certification at any time.

e) Voidable contracts

Every solicitation issued and contract executed by the State shall contain a statement that the contract is voidable under Section 50-60 if the bidder, offeror or contractor fails to comply with Section 20-160 of the Code.

f) Prohibited Political Contributions

Upon discovery of a political contribution that is potentially prohibited by Section 50-37 of the Code, the CPO shall send a letter requesting response from the business entity that made the potentially prohibited contribution within 5 business days acknowledging or denying that the contribution was prohibited.
If the CPO determines that a political contribution was prohibited, all contracts held by the contributing business entity are voidable, and the CPO shall determine if the circumstances surrounding the prohibited political contribution warrant the voiding of any of these contracts.
If a business entity violates Section 50-37(b) of the Code three or more times within a 36 month period, the CPO shall void all contracts with the business entity and the business entity shall be prohibited from responding to any solicitation issued by any State agency or entering into a contract with any State agency for 3 years from the date of the last violation.
If the CPO determines that a prohibited political contribution is grounds to suspend a business entity pursuant to Section 1.5560(b), the business entity shall have the right to a hearing pursuant to Section 1.5560(g), to be conducted in accordance with Subpart V.
If an affiliated person or affiliated entity makes a political contribution that was prohibited, although the business entity's contracts may not be void, the affiliated person or affiliated entity violated Section 50-37 of the Code and may be subject to a misdemeanor.

g) Notice

Notice of each violation of Section 50-37 and any penalty imposed for each violation shall be published on the Bulletin and in the Illinois Register.
The CPO shall directly notify a political committee in receipt of a prohibited political contribution that payment equal to the amount of the contribution is due the State of Illinois within 30 days after publication of the violation in the Illinois Register.
If an amount owed by a political committee as a result of a prohibited political contribution is not paid and is deemed uncollectible for any reason, notice of the political committee's nonpayment shall be published on the Bulletin and in the Illinois Register.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5038 Lobbying Restrictions

a) A person or business that is let or awarded a contract is not entitled to receive any payment, compensation or other remuneration from the State to compensate the person or business for any expenses related to travel, lodging, or meals that are paid by the person or business to any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder. [30 ILCS 500/50-39(a)]

b) Disclosure

Any bidder or offeror on a State contract that hires a person required to register under the Lobbyist Registration Act [25 ILCS 170] to assist in obtaining a contract shall:

A) Disclose all costs, fees, compensation, reimbursement and other remunerations paid or to be paid to the lobbyist related to the contract;

B) Not bill or otherwise cause the State of Illinois to pay for any of the lobbyist's costs, fees, compensation, reimbursements or other remuneration;

C) Sign a verification certifying that none of the lobbyist's costs, fees, compensation, reimbursements or other remuneration were billed to the State.

The information in subsection (b)(1)(A), along with all supporting documents, shall be filed with the agency awarding the contract and with the Secretary of State. The CPO-GS shall post this information, together with the contract award notice, on the Bulletin. [30 ILCS 500/50-38(b)]

c) No person or entity shall retain a person or entity required to register under the Lobbyist Registration Act to attempt to influence the outcome of a procurement decision for compensation contingent in whole or in part upon the decision or procurement. Any person who violates this subsection (c) is guilty of a business offense and shall be fined not more than $10,000. [30 ILCS 500/50-38(c)]

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5039 Procurement Communication Reporting Requirement

a) Reporting Requirement

Any written or oral communication received by a State employee who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract or a project, shall be reported to the Procurement Policy Board in accordance with rules of the Executive Ethics Commission (2 Ill. Adm. Code 1620). [30 ILCS 500/50-39(a)]

b) Excepted Communications

These communication do not include the following:

A) statements made by a person publicly in a public forum. However, communications made in a public forum, if made privately, must be reported;

B) statements regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter; and

C) statements made by a State employee to:

i) the State employee's Agency Head;

ii) other employees of that agency;

iii) employees of the Executive Ethics Commission, including the CPO-GS, SPOs, PCMs and other CPO-GS staff; or

iv) an employee of another State agency who, through the communication, is either:

• exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the purchasing agency or the appropriate SPO; or

• exercising oversight, supervisory, or management authority over the procurement in the normal course of business and as part of official responsibilities;

D) unsolicited communications providing general information about products, services, or industry best practices before those products or services become involved in a procurement matter;

E) communications received in response to procurement solicitations, including, but not limited to, vendor responses to a:

i) RFI;

ii) RFP;

iii) Request for Qualifications;

iv) IFB;

v) small purchase, sole source, or emergency solicitation; or

vi) questions or answers posted to the Illinois Procurement Bulletin to supplement the procurement action, provided that the communications are made in accordance with instructions contained in the procurement solicitation, procedures, or guidelines;

D) communications that are privileged, protected, or confidential under law; and

E) communications that are part of a formal procurement process as set out by statute, rule, or the solicitation, guidelines, or procedures, including, but not limited to:

i) the posting of procurement opportunities;

ii) the process for approving a procurement business case or its equivalent;

iii) fiscal approval;

iv) submission of bids;

v) the finalization of contract terms and conditions with an awardee or apparent awardee; and

vi) any other similar formal procurement process.

The provisions of this Section shall not apply to communications regarding the administration and implementation of an existing contract, except communications regarding change orders or the renewal or extension of a contract.
No trade secret or other proprietary or confidential information shall be included in any communication reported to the Procurement Policy Board. [30 ILCS 500/50-39(b)]

c) When an oral communication made by a person required to register under the Lobbyist Registration Act is received by a State employee that is covered under this Section, all individuals who initiate or participate in the oral communication shall submit a written report to that State employee that memorializes the communication and includes, but is not limited to, the items listed in Section 50-39 of the Code. [30 ILCS 500/50-39(c)]

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5055 Supply Inventory

State agencies shall manage their inventory of supplies in compliance with the 12-month inventory restriction of Section 50-55 of the Code.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5060 Prohibited Bidders and Contractors

a) Unless otherwise provided, no business shall bid or enter into a contract or subcontract if the business or any officer, director, partner, or other managerial agent of the business has been convicted of a felony under the Sarbanes-Oxley Act of 2002 (PL 107-204) or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 [815 ILCS 5] for a period of 5 years from the date of conviction.

b) Every bid submitted to and contract executed by the State and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, contractor, or subcontractor, respectively, that the bidder, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the chief procurement officer shall declare the related contract void if any of the certifications pursuant to this subsection (b) are false. [30 ILCS 500/50-10.5]

c) A person or business that assists a State agency with writing specifications, developing evaluation criteria, or participating in evaluations of bids or proposals shall not submit a bid or proposal or receive a contract or subcontract for that procurement.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5065 Lead Poisoning Prevention Act Violations

Owners of residential buildings who have committed a willful or knowing violation of the Lead Poisoning Prevention Act [410 ILCS 45] are prohibited from doing business with the State of Illinois or any State agency, or subcontracting, until the violation is mitigated. [30 ILCS 500/50-14.5]

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5310 Concessions

a) A concession is an authorization allowing use of property for the purpose of selling directly or indirectly to the public. Concessions also include the assignment, license, sale or transfer of interests in or rights to discoveries, inventions, patents or copyrightable works.

b) All concessions of State property shall be awarded in accordance with the requirements of Article 20 of the Code. Contracts shall be awarded to the highest and best bidder or offeror.

c) Concession contracts shall be reduced to writing and shall include terms and conditions and concessionaire qualification requirements applicable to purchase contracts.

d) All proposed concession contracts must be filed with PPB in compliance with Section 5-30 of the Code.

e) Value for a concession contract means the estimated expected vendor's gross receipts resulting from the contract.

f) All concession contract awards shall be published, along with the value of the contract to the vendor.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5350 No-Cost Contracts

a) A no-cost contract is a contract that is paid for by those who use the supplies or services provided in the contract, not the State agency that procured the no-cost contract. An example of a no-cost contract would be a State agency's contract for fingerprint background checks that potential professional licensees must use, at their cost, to obtain a background check as part of their professional license application.

b) All no-cost contracts shall be awarded in accordance with the requirements of Article 20 of the Code.

c) Multiple awards are allowed. Persons may use any no-cost contract or no-cost joint purchase contract without further methodology for determining which vendor from among the multiple awardees will receive an order.

d) Value for a no-cost contract means the estimated expected vendor's gross receipts resulting from the contract.

e) All no-cost contract awards shall be published, along with the value of the contract to the vendor.

History

Source: Added at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5400 General

a) The CPO-GS may establish a joint purchasing and cooperative purchasing program. [30 ILCS 525/2]

b) This Subpart applies when the CPO-GS or a State agency and one or more Illinois governmental units, non-Illinois governmental units, qualified not-for-profit agencies, or members of a group purchasing organization, consortium, or cooperative, aggregate their needs to jointly procure supplies or services.

c) This Subpart describes and implements approved methods and requirements of source selection using governmental joint purchasing and non-governmental joint purchasing.

d) In the event of a conflict between this Subpart and the other Subparts, when the CPO-GS or a State agency and one or more Illinois governmental units, non-Illinois governmental units, qualified not-for-profit agencies, or members of a group purchasing organization, consortium or cooperative jointly procure supplies or services, this Subpart controls.

e) All joint and cooperative purchasing or procurement activities and contracts of the CPO-GS or a State agency must be authorized by the CPO-GS or designee, or must be approved by the CPO-GS or designee. All requests for joint purchasing authorization, at a minimum, shall state the parties to the joint or cooperative purchase and the availability of the resulting contract to other governmental units or qualified not-for-profit agencies.

f) Protests

When the CPO-GS or a State agency is the lead State entity, any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-submission conference, and any decision to reject a late bid or offer.
When the CPO-GS or a State agency is the lead State entity, any person who has submitted a bid or offer may protest a decision to reject that person's bid or offer, or award to another bidder or offeror or person who submits a quote or submission.
When the CPO-GS or a State agency makes a business decision to piggyback, rather than use another procurement method, the piggyback cannot be protested.

g) All contracts shall state the parties to the joint purchase and the availability of the resulting contract to governmental units and/or qualified not-for-profit agencies.

h) A procurement file shall be kept for all joint purchases, including, but not limited to, release off a joint purchase master contract. In addition to the requirements of Section 1.2080, as applicable, the procurement file shall contain the following:

Except for piggyback and a release off a multiple award joint purchase master contract, an intent to participate in a joint purchase (which may be encompassed in the solicitation or may be a stand-alone document) and the CPO-GS' authorization for the joint purchase.
For piggyback, the CPO-GS' authorization.
For a release off a multiple award joint purchase master contract, the SPO's approval.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5405 Definitions

As used throughout this Subpart, terms defined in the Governmental Joint Purchasing Act shall have the same meaning as in that Act and as further defined in this Section, and each term listed in this Subpart shall have the meaning set forth unless its use clearly requires a different meaning.

"Act" – The Governmental Joint Purchasing Act [30 ILCS 525].

"Competitive Solicitation Process" − The solicitation of two or more sources by public notification for the same or substantially similar requirements, unless otherwise provided in this Subpart.

"Cooperative" or "Consortium" – A group of purchasing entities that come together to purchase selected products and services.

"Group Purchasing Organization" − Purchasing by an organization created by groups of purchasers in related areas of endeavor who come together and form a purchasing organization, including hospitals, universities, school districts and airports.

"Governmental Joint Purchasing" − Joint purchasing in which the entity conducting the procurement is an Illinois governmental unit or a non-Illinois governmental unit.

"Illinois Governmental Unit" − The State of Illinois, any State agency as defined in Section 1-15.100 of the Code, officers of the State of Illinois, any public authority in Illinois that has the power to tax, or any other public entity created by Illinois statute, including any division or department.

"Joint Purchasing" − Purchasing in which two or more Illinois governmental units, non-Illinois governmental units, qualified not-for-profit agencies, or members of a group purchasing organization, cooperative or consortium combine their needs and requirements.

"Joint Purchase Contract" – A definite quantity or indefinite quantity contract awarded by two or more specifically named governmental units against which subsequent orders may be placed to meet the needs of the two or more specifically named governmental units.

"Joint Purchase Master Contract" – A definite quantity or indefinite quantity contract awarded in cooperation with or by the CPO-GS pursuant to the Act against which subsequent orders may be placed to meet the needs of a governmental unit or qualified not-for-profit agency.

"Lead State Entity" − An Illinois governmental unit or non-Illinois governmental unit conducting the competitive procurement process.

"Multiple Award" − An award made to two or more bidders or offerors for similar supplies or services, as determined by the CPO-GS or designee.

"Non-governmental Joint Purchasing" − Purchasing in which the entity conducting the procurement is not an Illinois governmental unit or non-Illinois governmental unit.

"Non-Illinois Governmental Unit" − The United States, a department or agency as defined by 18 USC 6, any of the 50 states of the United States, any agency of the 50 states of the United States, any public authority in one of the 50 states of the United States that has the power to tax, or any other public entity created by the statutes of one of the 50 states of the United States.

"Participant State Entity" − CPO-GS or a State agency that joins the procurement efforts of the lead state entity.

History

Source: Added at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5420 Governmental Joint and Cooperative Purchasing

a) The CPO-GS or designee may authorize any State agency to purchase supplies or services jointly with one or more Illinois governmental units, non-Illinois governmental units, or a group purchasing organization or cooperative or consortium of governmental units.

b) When the CPO-GS or a State agency is the lead state entity, all joint purchases shall be conducted as a small purchase, invitation for bids (IFB), request for proposals (RFP), or sole source or emergency purchase in accordance with the Code and this Part.

The CPO-GS may authorize a multiple award for IFB, RFP or concessions that are conducted as an IFB or RFP.
The solicitation, small purchase description, or sole source or emergency purchase justification shall state the intended availability of the resulting contract.
An emergency purchase shall follow Section 1.2030, but the notice shall, at a minimum, provide that the CPO-GS authorize the joint purchase and the resulting availability of the contract.
Sole source shall follow Section 1.2025, but the notice shall, at a minimum, provide that the CPO-GS authorize the joint purchase and the resulting availability of the contract.
The notice of award shall state the intended availability of the resulting contact (for example, all governmental units and qualified not-for-profit agencies, limited to named State agencies, limited to departments within governmental units).
When authorizing the joint purchase, the CPO-GS may designate the availability of the resulting contract (for example, all governmental units and qualified not-for-profit agencies, limited to named agencies, limited to departments within governmental units).
No-cost contracts conducted pursuant to an IFB shall be awarded to the vendors who provide the lowest priced bids.
No-cost contracts conducted pursuant to an RFP shall be awarded to the vendors who provide the highest overall scores.

c) The CPO-GS or a State agency may be a participant State entity except as otherwise provided in this Subpart.

When the CPO-GS or a State agency is a participant with an Illinois constitutional officer, another CPO as defined in Section 10-20 of the Code or another State agency that is the lead state entity, the joint purchase may be conducted as a small purchase, IFB, RFP, or sole source or emergency purchase, in accordance with the Code.
When the CPO-GS or a State agency is a participant with an Illinois governmental unit or non-Illinois governmental unit that is not subject to the jurisdiction of the CPO-GS, is not an Illinois constitutional officer, or is not a CPO as defined in Section 10-20 of the Code, the joint purchase shall be conducted as an IFB or RFP.
When the CPO-GS or a State agency is a participant State entity with an Illinois governmental units or a non-Illinois governmental unit, not including another CPO as defined in Section 10-20 of the Code or an Illinois constitutional officer, the solicitation and award shall be published to the Bulletin with at least the following:

A) Information as to where the lead state entity's solicitation may be found.

B) Closing date of the lead state entity's procurement.

C) Publication of the lead state entity's award.

The CPO-GS may authorize a multiple award.
A State agency or CPO-GS contract shall not be executed until the lead state entity executes a contract that makes the contract available to other governmental units.
A State agency or CPO-GS shall not execute a contract that results from a procurement with a group purchasing organization, consortium or cooperative until the vendor has an active registration in a vendor portal and a registration in the CPO-GS eProcurement system.

d) Piggyback

The CPO-GS or a State agency may piggyback off a contract that has already been procured, if the CPO-GS determines it is in the best interest of the State, by one of the following:

A) Federal agency;

B) Consortium or cooperative of governmental units; or

C) General Services Administration.

When the CPO-GS or a State agency piggybacks, the contract award shall be published before use of the contract.
When the CPO-GS or a State agency piggybacks, the awarded vendor shall have an active registration in vendor portal and a registration in the CPO-GS' eProcurement system.

e) Multiple Award

Supplies and services may be solicited with the intent to make multiple awards. The solicitation must state this intent. When the CPO-GS or a State agency is the lead state entity, the solicitation must describe the type of multiple award in detail.
Types of Multiple Awards

A) Progressive (Primary with Alternates)

A multiple award may be made to a primary and one or more alternate vendors when there is a need for multiple vendors to ensure immediate performance. The primary vendor shall have first refusal for all orders with others contacted in progressive order. Ranking of the alternates shall be by price or value depending on the methodology (IFB or RFP) used in the solicitation. Selection to meet the particular need shall be by low price or best value as appropriate to the underlying solicitation. If appropriate and within legal requirements, an alternate progressive award for the same items may be made to promote statutory preferences, goals, policies and programs (e.g., small business set-aside).

B) Geographical

A multiple award may be made to a vendor based on geographical locations in the State. A vendor may be granted multiple awards for a particular geographical location based on a determination, in writing, that:

i) use of the methods of source selection set forth in Article 20 of the Code is not practicable or advantageous because, for example, the program needs of State agencies cannot reasonably be met within the normal procurement timeframes; or

ii) the type and variety of State agency needs are such that a single award will not assure the needed availability or diversity of vendors.

C) Prequalified Pool of Vendors

i) Conditions for Use. When it may be more efficient or more appropriate, based on the nature of the supply or service, the CPO-GS or a State agency may issue a solicitation to identify vendors who meet the criteria for the prequalified pool. Reasons for use of this alternative include, but are not limited to, the need for information technology or telecommunications supplies or services, or to establish a pool of qualified vendors and then select from that pool as needs arise.

ii) Request for Qualifications. Qualifications shall be solicited by seeking statements of the qualifications from vendors to determine their inclusion in a prequalified pool. The qualifications submitted to the prequalified pool describe the specific supplies or services the CPO-GS or State agency require that the potential vendor can fulfill.

iii) Public Notice. Public notice of the Request for Qualifications shall be published in the Bulletin at least 14 days before opening of qualifications.

iv) Receipt and Registration of Qualifications. Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP. Opening shall be witnessed by a State employee or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that includes the name of each offeror, the number of modifications received, if any, a description sufficient to identify the supply or service item offered, and a notation that the package contains a price proposal. The record of proposals shall be open to public inspection after award of the contract. Proposals and modifications shall be opened in a manner that avoids disclosing contents to other offerors.

• Only State personnel and contractual agents authorized by the SPO may review the proposals prior to award. Other than information that was recorded, read and made publicly available at the opening of the proposals, the State agency conducting the procurement shall not disclose any information contained in the offer outside of contracting officers, identified State agency personnel, or others specifically authorized by the CPO-GS or SPO until after the award of the proposed contract has been posted to the Bulletin. This does not restrict the disclosure of information to, or receipt by, State agency personnel identified by the State agency head or the chief executive officer of a board or commission to receive the information. The SPO may require confidentiality and conflict statements from those persons identified by the agency head or the chief executive officer to receive the information.

• The agency head or chief executive officer may identify State employees who have primary responsibility for the procurement; State employees who exercise experience or expertise in the subject matter of the particular procurement in the normal course of business and as part of official responsibilities; and State employees who exercise oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities.

v) Evaluation Factors. The Request for Qualifications shall contain the factors and subfactors, if any, to be used in determining if a vendor is prequalified to provide the category of supplies or services. These factors and subfactors, if any, include, but are not limited to, responsibility, any necessary experience, any necessary technical knowledge, any required certification or accreditation, and financial stability.

vi) Discussion with Responsible Vendors and Revisions of Qualifications. As provided in the Request for qualifications, discussions may be conducted with responsible vendors who submit qualifications determined to be reasonably susceptible of being prequalified for clarifying and assuring full understanding of and responsiveness for prequalification. Those vendors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of qualifications. Revisions may be permitted after submission and before prequalification. In conducting discussions, there shall be no disclosure of any information derived from qualifications submitted by other vendors. If information is provided to any vendor by the State, it shall be provided to all vendors.

vii) Prequalified Pool. A multiple award may be made for the prequalified pool when multiple vendors are prequalified in response to a Request for Qualifications. Vendors shall be prequalified in writing, taking into consideration the evaluation factors set forth in the Request for Qualifications. The procurement file shall contain the basis on which each vendor is determined to be prequalified.

viii) Submissions to the Prequalified Pool. Each time the CPO-GS or State agency has a need for supplies or services from the prequalified pool, the CPO-GS or State agency shall provide to each member of the prequalified pool a document that describes in detail the supplies or services needed and the selection criteria the CPO-GS or State agency will use to make an award. The prequalified pool shall have at least 5 days to respond with a submission that includes the price or value for the supplies or services described in the proposal.

ix) Discussion with the Prequalified Pool and Revisions to Quotation. As provided in the Request for Qualifications, the State's detail of supplies or services may be discussed with members of the prequalified pool to clarify and assure full understanding of, and responsiveness to the request for the vendor submission. Each member of the prequalified pool shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted after submission and before award for obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competitors in the prequalified pool. If any other information is disclosed to any member of the prequalified pool, it shall be provided to all members of the prequalified pool.

x) Award. Award shall be made to the responsible prequalified member of the pool whose proposal is determined in writing to be the most advantageous to the State, taking into consideration the selection criteria set forth in the vendor's written submission to the prequalified pool. The procurement file shall contain the basis on which each award is made. If a vendor other than the lowest price or value vendor is awarded the contract, the CPO-GS or State agency shall publish in the Bulletin the reason for awarding to other than the lowest price or value vendor.

xi) Every request for procurement under this subsection (e)(2)(C) shall provide a method for allowing additional vendors to become part of the prequalified pool after its creation, which shall include additions to the prequalified pool at least annually.

xii) This Section shall not apply to a construction agency in the procurement of construction or construction-related materials.

D) Multiple Award from a Cooperative, Consortium, or Group Purchasing Organization

i) A cooperative, consortium, or group purchasing organization may make a contract award to two or more vendors. The CPO-GS or State agency may enter into a contract with the vendors awarded a contract by the cooperative, consortium, or group purchasing organization.

ii) Order. An order shall be placed with a multiple award vendor whose quotation is determined in writing to be the most advantageous (lowest cost or best value) to the State, taking into consideration the selection criteria set forth in the request for quotation. If the lowest priced or most advantageous vendor may be determined without a written request for quotation, an order may be made with the low cost or best value vendor. The procurement file shall contain the basis on which each order is made. If a vendor other than the lowest price or best value vendor receives an order, the CPO-GS or State agency shall provide justification, such as compatibility with existing supplies or services in the procurement file.

Multiple award contracts shall be considered joint purchase master contracts. Supplies or services ordered under these joint purchase contracts shall be documented on the release off a master that refers to that joint purchase master contract. A multiple award contract is not a requirements contract and does not guarantee any level of ordering activity by the State agency.
If a particular quantity requirement arises that exceeds a State agency's normal requirement or a quantity or amount specified in the contract, a separate solicitation may be issued.

f) Orders Off of a Multiple Award Joint Purchase Master Contract

If multiple vendors are awarded a State contract from the same cooperative, consortium, or group purchasing organization procurement, the CPO-GS or a State agency shall choose the vendor that is low cost or provides the best value to the CPO-GS or State agency.

A) When there are multiple vendors awarded for an information technology or telecommunications contract or a contract that primarily provides services, the CPO-GS or a State agency shall request informal quotes to determine which vendor best meets its need and is the low cost or best value, if this determination cannot be made based on the offerings, terms and conditions, and pricing in the contract of the multiple vendors.

B) An informal quote is unnecessary if the State agency's justification would otherwise meet the requirements of a sole source or sole economically feasible joint purchase.

C) The order must be placed with the vendor that best meets the CPO-GS' or State agency's need and is the low cost or best value.

D) For the term of the joint purchase master contract, including any lease term, related and updated supplies may be limited to the selected vendor for the initial order.

When the CPO-GS or a State agency is the lead state entity, the solicitation must describe the type of the methodology for determining which vendors from among the multiple awardees will receive an as-needed individual order off of the joint purchase master contract.

g) State and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to use each others' procurement contracts. This authority is governed by this Subpart and the Governmental Joint Purchasing Act.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5440 Non-Governmental Joint Purchasing

a) If the CPO-GS determines it is in the best interest of the State, a State agency may piggyback off a contract that has already been procured by one of the following:

Cooperative or consortium of educational, medical, research, or similar entities; or
Group purchasing organization of which the CPO-GS or State agency is a member or affiliate.

b) When the CPO-GS or a State agency piggybacks, the contract award shall be published before use of the contract.

c) When the CPO-GS or a State agency piggybacks, the awarded vendor shall be registered in a vendor portal and have a registration in the CPO-GS' eProcurement system.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5460 No Agency Relationship

In any cooperative or joint purchase, each participant must issue its own purchase order, accept its own deliveries, and make its own payments. Neither the CPO-GS nor any State agency shall have any obligation to the vendor for payment of orders placed by other governmental units or qualified not-for-profit agencies.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5465 Consortiums, Cooperatives, and Group Purchasing Organizations

The CPO-GS shall review the practices and processes of cooperatives, consortiums, and group purchasing organizations. The review may include the following:

a) Financial disclosures and conflicts of interest.

b) Promotes contracts established by utilizing a competitive procurement practice.

c) Publicly available information regarding solicitation, award, and post-award documents, including contract, pricing and contract amendments.

d) No requirement on marketing the contracts of the cooperative, consortium, or group purchasing organization.

e) No requirement to execute contracts with vendors of the cooperative, consortium, or group purchasing organization.

History

Source: Added at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5470 Bulletin Content

a) In addition to requirements in other Sections, at a minimum, the Notice of Solicitation shall state the parties to the joint purchase and the intended availability of the resulting contract.

b) In addition to requirements of other Sections, at a minimum, the Notice of Award shall state the availability for the resulting contract.

History

Source: Added at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5475 Vendor Portal and Eprocurement

a) Vendors with a cooperative, consortium, or group purchasing organization contract shall have an active registration in a vendor portal. These vendors with subcontractors that will deliver services or supplies to the CPO-GS or State agencies shall have an active registration in a vendor portal.

b) Vendors with a cooperative, consortium or group purchasing organization contract shall have a registration in the eProcurement system used by the CPO-GS.

c) The CPO or designee may waive the requirements of this Section.

History

Source: Added at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5510 Complaints Against Vendors (repealed)

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5520 Suspension (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5530 Resolution of Contract Controversies (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5540 Violation of Law or Rule (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5550 Protests

a) Procurement-Related Protests Allowed

Any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-submission conference, and any decision to reject a late bid, proposal or response.
Any person who has submitted a bid, proposal or response may protest a decision to reject that person's bid, proposal, or response or the decision to award to another bidder, offeror or respondent.

b) Protest Review Officer

The CPO-GS may appoint one or more Protest Review Officers (PRO) to consider the procurement-related protests and make a recommendation to the CPO-GS for resolution of the protest. The CPO-GS may adopt the recommendation or take other action.

c) Submission of Protest

A protesting party must submit a protest in writing to the PRO identified in the solicitation document. Fax and email qualify as writing, but the PRO does not guarantee receipt using those means.
The protest must be physically received by the PRO at the location specified. A postmark or other carrier mark prior to the due date and time is not sufficient to show physical receipt.

A) In regard to the solicitation notice or solicitation document including specifications, a protest must be received within 14 days after the date the solicitation was posted to the Bulletin and must be received by the PRO at the designated address before the date for opening bids, proposals or responses.

B) In regard to rejection of individual bids, proposals or responses or awards, the protest must be received by close of business no later than 14 days after the protesting party knows or should have known of the facts giving rise to the protest to ensure consideration, and, in any event, must be received before execution of the applicable contract.

C) The PRO, for good cause shown, or when he or she determines that a protest raises issues significant to the procurement system, may consider an untimely protest. Good cause may include, but is not limited to, instances in which the procurement file is not available in a timely manner to interested parties or when a FOIA request has not been responded to by a State agency in full or in part.

Any notice posted to the Bulletin establishes the "known or should have known" date for the subject matter of the notice.
Protests must be clearly marked on the delivery container or the e-mail subject line.
No formal briefs or other technical forms of pleading or motion are required. Protest submissions should be concise and logically arranged, and should clearly state legally sufficient grounds of protest. The written protest shall include as a minimum the following:

A) the name and address of the protesting party;

B) identification of the procurement, and, if a contract has been awarded, its number or other identifier;

C) a statement of reasons for the protest specifically identifying any alleged violation of a procurement statute, a procurement rule or the solicitation itself, including the evaluation and award (conclusions with supporting facts and arguments may not be sufficient);

E) specific relief sought.

The protesting party shall clearly identify any information in the protest that is confidential, proprietary or a trade secret.

d) Requested Information

The State agency must supply a response to the protest within the time period set forth by the PRO. If a State agency fails to comply with this request, the PRO may consider the protest on the basis of available information or may recommend to the CPO-GS that the relief requested in the protest be granted.
The protesting party must supply any additional information requested by the PRO within the time periods set in the request. If the protesting party fails to comply with this request, the PRO shall consider the protest on the basis of available information or may deny the protest.
The PRO may request that an interested party supply additional information within the time period set in the request. For purposes of a protest, an "interested party" means an actual or prospective bidder, offeror or respondent whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.

e) Stay of Procurements During Protest

Unless the CPO-GS determines the needs of the State require an immediate execution of a contract, the following apply:

When a protest has been timely filed and before an award has been made, the SPO shall make no award of the contract until the protest has been resolved.
If timely received but after award, the award shall be stayed without penalty to the State.

f) Resolution

The CPO-GS will resolve the protest by means of a written determination. The PRO will make a recommendation to the CPO-GS as expeditiously as possible after receiving all relevant, requested information. In determining the appropriate recommendation, the PRO shall consider the seriousness of the procurement deficiency, the degree of prejudice to other parties or to the integrity of the competitive procurement system, the good faith of the parties, the urgency of the procurement, and the impact of the recommendation on the State agency's mission. The recommendation may include, but is not limited to:

Affirming the State agency's initial decision, in whole or part;
Directing the State agency to issue a new solicitation;
Directing the State agency to award a contract consistent with statute and rule; or
Directing such other action as is necessary to promote compliance with statute or rule.

g) Effect of Judicial Proceedings

If an action concerning the protest has commenced in a court or administrative body, the CPO-GS may defer resolution of the protest pending the judicial or administrative determination.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.5560 Suspension and Debarment

a) This Subpart applies to all suspensions or debarments of vendors from consideration for award of contracts and being a subcontractor under the Code. For the purposes of this Subpart, all references to "vendors" includes subcontractors.

b) Causes for Suspension or Debarment. A vendor may be suspended or debarred from participation due to acts or omissions that indicate that the vendor lacks integrity and honesty in the conduct of business or the performance of contracts. Acts or omissions that indicate the lack of business integrity and honesty include, but are not limited to:

Fraud, bribery, embezzlement, theft, collusion, conspiracy, anti-competitive activity, or other misconduct and offenses prohibited by law, whether or not any such misconduct or offense is in connection with a State contract;
Making any false statement, including in a registration in a vendor portal and the e-Procurement system;
Violating any rule or procurement procedure or making a false statement in connection with this Part or procurement procedures;
Making a false statement, representation, claim or report regarding the character, quality, quantity, or cost of any work performed or supplies or materials furnished in connection with a contract or subcontract administered or supervised by a State agency; and
Being debarred or suspended by another State agency; the United States; a department or agency as defined by 18 USC 6; any of the 50 states of the United States; any State agency of the 50 states of the United States; any public authority in one of the 50 states of the United States that has the power to tax; or any other public entity created by the statutes of one of the 50 states of the United States.

c) Suspension Process

Any vendor the CPO-GS proposes to suspend pursuant to this Subpart will be furnished written notice by certified or registered mail. Proof that notice was dispatched by means reasonably calculated to be received by the prescribed date shall be prima facie proof that the notice was timely received.
The notice of proposed suspension will include the following:

A) The basis for the proposed suspension;

B) A clear and concise statement of the facts and circumstances on which the proposed suspension is based;

C) The legal authority and jurisdiction under which the action is taken;

D) The consequences of failure to respond to the notice;

E) The right to request a hearing.

A notice of proposed suspension may be amended at any time.
A copy of the written notice of proposed suspension will be provided to the Procurement Policy Board within 7 days after vendor notification.
Vendor Response and Request for Hearing

A) Any vendor who receives a notice of proposed suspension may, within 30 days after receipt of the notice, request a hearing. A vendor that does not request a hearing within 30 days after receipt shall be deemed to have waived any right to a hearing and will be subject to immediate suspension.

B) The vendor may file a written answer to a notice of proposed suspension not later than 20 days prior to the hearing date, but shall not be required to file an answer. The answer may include affirmative defenses.

C) Form of Documents

i) Documents filed by the vendor shall clearly show the file hearing number and the title of the proceeding in connection with which they are filed, on every page of the document.

ii) Each document filed shall be signed by the vendor or his or her authorized representative or attorney.

Hearing Procedures. The Hearing Officer has the authority to conduct and preside over the hearing, to take all necessary action to avoid delay, to maintain order, to ensure compliance with all notice requirements, and to ensure the development of a clear and complete record. The Hearing Officer shall have all powers necessary to conduct a fair and impartial hearing, including, but not limited to, the power to:

A) Regulate the course of hearings, set the time and place for continued hearings, fix times for filing of documents and, in general, conduct the proceedings according to the provisions of this Subpart;

B) Interview parties and direct parties to provide responses, limit the number of times any party may testify, limit repetitious or cumulative testimony, and set reasonable limits on the amount of time each witness may testify;

C) Dispose of procedural requests or similar matters;

D) Make a recommendation to the CPO-GS regarding the matters;

E) Extend the date of any hearing, should the circumstances warrant that action;

F) Afford parties the opportunity to present witnesses;

G) Recommend the appropriate length of a suspension in cases in which it has been established by admission, conviction, or judgment of a court of competent jurisdiction that the vendor engaged in conduct warranting a suspension, or when it has been established, by findings made, in accordance with law or rule, by another public agency, that the vendor has engaged in conduct warranting a suspension; however, the Hearing Officer shall not receive evidence relating to the merits of the prior judicial or administrative decision or findings;

H) Make a report containing findings of fact and conclusions of law. The Hearing Officer shall transmit the entire record, including those findings and conclusions, to the CPO-GS for review and final decision;

I) Permit the recording of testimony at the hearing by a certified court reporter or a mechanical recording device (need not be transcribed unless requested by a party, who shall pay for the transcription of the portion requested).

Determination

A) Based on the record as a whole, the CPO-GS will determine any suspension action to be taken.

B) In assessing the record, consideration will be given to the reasonableness in view of surrounding circumstances, corroboration or lack thereof as to important allegations, and inferences that may be drawn from the existence or absence of affirmative facts. This assessment may include a review of documents such as contracts, deliverables, invoices, inspection reports, and correspondence.

C) Upon reaching a final decision, the CPO-GS will notify the vendor of the determination and will set forth the period during which the vendor shall be suspended from bidding or submitting an offer on State contracts, or holding a State contract. Any interim suspension shall be deducted from the period of final suspension.

D) Parties will be sent a copy of the final decision by mail, postage prepaid, certified or registered, addressed to the last known address of the person, affiliated person, or affiliated entity involved. A copy of the final decision will be mailed to each party and to all attorneys of record.

Suspension Coverage. A suspension applies to the vendor set forth in the notice of suspension.

A) If the vendor named in the notice of suspension is an individual, the suspension may also apply to any other vendor:

i) In which the suspended individual is an officer or director, or holds any other substantial leadership position, until such time as the individual is severed from the vendor; or

ii) In which the suspended individual has controlling legal or beneficial financial interest, until the suspended individual's interests are divested.

B) In addition to all covered entities and affiliates, the suspension also applies to any entity or affiliate that is formed or organized by a suspended vendor after the date a suspension action was entered.

C) Any suspended vendor, for the term of the suspension, is ineligible to participate as a vendor, material supplier, or lessor of equipment on or in connection with contracts awarded by the State or subcontracts of contracts awarded by the State.

D) a suspension will also be deemed a finding of lack of responsibility.

E) Exception. A suspension action is final, except that the period of time during which a contractor or subcontractor is suspended may be decreased, delayed or rescinded at any time, if the CPO-GS determines it is in the best interest of the State.

F) The CPO-GS may suspend a vendor for a period of time commensurate with the seriousness of the offense, but for no more than 10 years. The suspension will be effective 7 calendar days after receipt of the final notice.

d) Debarment Process

The CPO-GS may debar a vendor. Debarment is the permanent suspension of a vendor from doing business with the State. A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law. Bids, proposals or responses received from the debarred vendor or proposing the use of a debarred subcontractor will not be considered as responsive. The debarment will be effective 7 calendar days after receipt of notice, unless an objection is filed. If an objection is filed, the debarment shall not become effective until the evaluation of the objection is completed.
Any vendor the CPO-GS proposes to debar pursuant to this Subpart will be furnished written notice by certified or registered mail. Proof that notice was dispatched by means reasonably calculated to be received by the prescribed date shall be prima facie proof that the notice was timely received.
The notice of proposed debarment will include the following:

A) The basis for the proposed debarment;

B) A clear and concise statement of the facts and circumstances on which the proposed debarment is based;

C) The legal authority and jurisdiction under which the action is taken;

D) The consequences of failure to respond to the notice; and

E) The right to request a hearing.

A notice of proposed debarment may be amended at any time.
A copy of the written notice of proposed debarment will be provided to the Procurement Policy Board within 7 days after vendor notification.
Vendor Response and Request for Hearing

A) Any vendor who receives a notice of proposed debarment may, within 30 days after receipt of the notice, request a hearing. A vendor that does not request a hearing within 30 days after receipt shall be deemed to have waived any right to a hearing and will be subject to immediate debarment.

B) The vendor may file a written answer to a notice of proposed debarment not later than 20 days prior to the hearing date, but shall not be required to file an answer. The answer may include affirmative defenses.

C) Form of Documents

i) Documents filed by the vendor shall clearly show the file hearing number and the title of the proceeding in connection with which they are filed on every page of the document.

ii) Each document filed shall be signed by the vendor or by his or her authorized representative or attorney.

Hearing Procedures. The Hearing Officer has the authority to conduct and preside over the hearing, to take all necessary action to avoid delay, to maintain order, to ensure compliance with all notice requirements, and to ensure the development of a clear and complete record. The Hearing Officer shall have all powers necessary to conduct a fair and impartial hearing, including, but not limited to, the power to:

C) Direct parties to appear and confer for the simplification of issues or presentation of evidence that may be received in written form without prejudice to the parties;

D) Dispose of procedural requests or similar matters;

E) Make a recommendation to the CPO-GS regarding the matters;

F) Extend the date of any hearing, provided that the Hearing Officer may condition the granting of a vendor's request for an extension on the imposition or extension of an interim suspension, should the circumstances warrant that action;

G) Afford parties the opportunity to present witnesses;

H) Recommend the appropriate length of a debarment in cases in which it has been established by admission, conviction, or judgment of a court of competent jurisdiction that the vendor engaged in conduct warranting a debarment, or when the vendor has been established by findings made in accordance with law or rule by another public agency that the vendor has engaged in conduct warranting a debarment; however, the Hearing Officer shall not receive evidence relating to the merits of the prior judicial or administrative decision or findings;

I) Make a report containing findings of fact and conclusions of law. The Hearing Officer shall transmit the entire record, including those findings and conclusions, to the CPO-GS for review and final decision; and

J) Permit the recording of testimony at the hearing by a certified court reporter or a mechanical recording device (need not be transcribed unless requested by a party, who shall pay for the transcription of the portion requested).

Determination

A) Based on the record as a whole, the CPO-GS will determine whether the debarment action will be taken.

B) In assessing the record, consideration will be given to the reasonableness in view of surrounding circumstances, corroboration, or lack thereof, as to important allegations, and inferences that may be drawn from the existence or absence of affirmative facts. This assessment may include a review of documents, such as contracts, deliverables, invoices, inspection reports, and correspondence.

C) Upon reaching a final decision, the CPO-GS will notify the vendor of the determination and will set forth the period during which the vendor shall be debarred from bidding, submitting an offer on State contracts, or holding a State contract.

Debarment Coverage. A debarment applies to the vendor set forth in the notice of proposed debarment.

A) If the vendor named in the notice of proposed debarment is an individual, the debarment may also apply to any other vendor:

i) In which the debarred individual is an officer or director, or holds any other substantial leadership position, until such time as the individual is severed from the vendor; or

ii) In which the debarred individual has controlling legal or beneficial financial interest, until the debarred individual's interests are divested.

C) Any debarred vendor, for the term of the debarment, is ineligible to participate as a vendor, material supplier, or lessor of equipment on, or in connection with, contracts awarded by the State or subcontracts of contracts awarded by the State.

E) Aa debarment will also be deemed a finding of lack of responsibility.

F) Exception. A debarment action is final, except that the period of time during which a contractor or subcontractor is debarred may be decreased, delayed or rescinded at any time, if the CPO-GS determines it is in the best interest of the State.

e) The CPO-GS shall post the public record of suspensions and debarments that are currently in effect on his or her web page and on the Bulletin.

f) The CPO-GS shall maintain a master list of all suspensions and debarments. The master list shall retain information concerning suspensions and debarments as public records. This public information may be considered in determining responsibility.

g) Nothing in this Section shall prohibit the BEP Council from taking its own separate action under Section 8 of the BEP Act.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5620 Violation of Statute or Rule

a) Determination that Solicitation or Award Violates Statute or Rule

If the CPO-GS or the SPO finds that the solicitation or proposed award is in violation of statute or rule, the CPO-GS or SPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if the correction may be legally accomplished.

b) Determination that Contract Violates the Code or this Part

If any contract or amendment to a contract is entered into, or purchase or expenditure of funds is made, at any time in violation of this Part or any other law, the contract or amendment may be declared void by the CPO-GS or may be ratified or affirmed, provided the CPO-GS determines that ratification is in the best interest of the State. If the contract is ratified and affirmed, it shall be without prejudice to the State's right to any appropriate damages.
If, during the term of a contract, the SPO determines that the contractor is delinquent in the payment of debt as set forth in Section 50-11 of the Code, the CPO-GS may declare the contract void if it determines that voiding the contract is in the best interest of the State.
If, during the term of a contract, the CPO-GS determines that the contractor or subcontractor no longer qualifies to enter into State contracts, the CPO-GS may declare the contract void if it determines that voiding the contract is in the best interest of the State. However, the related contract shall not be declared void unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor no longer qualifies to enter into State contracts. [30 ILCS 500/50-60(e)]

c) Effect of Declaring a Contract Null and Void

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5700 General

Any hearing required by the Code or offered in this Subpart shall be conducted in accordance with the procedures within this Subpart V, unless otherwise provided for in another Subpart.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.5710 Informal Process

The hearing is for the purpose of receiving information from interested persons in a reasonable manner. Formal rules of evidence will not apply, nor will the hearing be conducted in the manner of a trial. The Hearing Officer may record the hearing to aid in producing minutes or may use the recording as the minutes.

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5720 Hearing Officers

a) The CPO-GS may appoint one or more Hearing Officers to conduct the hearing. If more than one Hearing Officer is assigned to conduct a hearing, one shall be designated as the Chief Hearing Officer.

b) The Hearing Officer may require that the SPO or authorized representative of a State agency attend a hearing or be part of the Hearing Panel.

c) The Hearing Officer will hear and consider information presented by interested persons and make a recommendation to the CPO-GS regarding the validity of the determination of the subject matter of the hearing.

d) The Hearing Officer shall be responsible for the orderly conduct of the hearing by exercising discretion in:

Scheduling, starting and ending the hearing;
Setting the order of activities;
Setting reasonable time limits for oral statements;
Resolving any conflicts that may arise during the hearing.

e) The Hearing Officer may cancel a hearing at any time prior to commencing a hearing, including making an announcement at the scheduled hearing date, time and location, but shall give as much advance notice as possible under the circumstances. A notice confirming the cancellation and any reschedule information will be published in the Bulletin.

f) The Hearing Officer may change a scheduled hearing date, time or location prior to commencing a hearing by posting a notice outside the hearing room and by posting a notice to the Bulletin. The hearing should be continued to the next practicable date. In setting the next practicable hearing date, the Hearing Officer may take into consideration the schedule of the parties, the hardship to witnesses or the general public, travel and logistical considerations and any other matters that would affect public participation in the hearing.

g) After commencing a hearing, the Hearing Officer may reconvene a hearing by announcing the new date and time at the hearing and posting the new date and time outside the hearing room. The hearing shall be continued to the next practicable date in accordance with subsection (f).

History

Source: Added at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.5730 Notice of Hearing

a) Notice that a hearing will be held as necessary to receive testimony or written comments regarding the subject matter identified in the notice will be published in the Bulletin. The hearing notice shall be published in the Bulletin as soon as practicable and in accordance with any statutory requirements.

b) The hearing may be held as soon as the first working day following the end of the notice period. The notice shall contain the following information and may describe more than one matter to be considered at the same hearing:

The name of the affected parties (e.g., State agency and vendor);
A description of the subject matter;
A justification for the action under review;
Requirements for testifying or submitting written comments;
Hearing contact information;
The date, time and location of the hearing;
A statement that all written comments and oral testimony shall be considered public record and open to review by the public;
A statement of, or reference to, this hearing procedure.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.5740 Written Comments and Oral Testimony

Any person wishing to comment for or against the determination may do so in writing alone, may testify in person and may submit written comments reflecting the oral testimony.

a) Written Comments

Submission of Written Comments

Written comments are requested by the hearing registration deadline, shown in the Bulletin notice. All written comments received by the hearing date will be considered.

Incorporation of Written Comments

If the Hearing Officer has received any written comment, the name and affiliation of the person submitting the comment shall be stated for the record and the written comments shall be incorporated into the record. In addition, the Hearing Officer may read excerpts from or summarize the basic points of the written comments for the record.

b) Oral Testimony

Advance Registration

Any person who wishes to testify is requested to register with the Hearing Contact. Advance registration is requested to allow for efficient scheduling and to ensure the hearing room has sufficient capacity for those who wish to testify. Those who register in advance will be heard first on the matter for which they registered. The Hearing Officer has discretion to limit testimony for the efficiency of the hearing.

Written Copy of Testimony Requested

Written comments reflecting proposed oral testimony are requested by the hearing registration deadline shown in the Bulletin notice to allow the Hearing Officer time to prepare for the hearing. A person testifying may submit written comments along with the testimony. The Hearing Officer may request a written copy of the oral testimony.

Witness Slip Required

Each person providing oral testimony must complete a witness slip and provide it to the Hearing Officer as instructed.

Duration of Testimony

Each person shall have a reasonable period of time to present his or her position based on the complexity of the issue and the press of other business,

c) Sole Source and Emergency Contract Extensions − Supplemental Provisions

The notice, including attachments, as shown in the Bulletin represents the position of the State agency and the initial position of the CPO-GS. The Hearing Officer shall have the notice placed into the record. A copy of the notice will be posted in the hearing room.
The SPO and a representative of the State agency shall attend the hearing if any person registers in advance to testify in opposition to the sole source or emergency contract extension determination. Attendance may be by video or audio. The SPO and agency representative shall respond to questions of the Hearing Officer and shall be available for consultation after adjournment of the hearing.
The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative. The Hearing Officer may allow parties to engage in dialogue and allow follow-up questions and answers as needed to ensure full understanding of the matter. The Hearing Officer is not required to respond to substantive questions at the hearing nor make commitments regarding the content of his or her recommendation.

d) Suspension and Debarment − Supplemental Provisions

A party who receives notice of suspension or debarment may request a hearing to protest the suspension or debarment action. The hearing will be conducted in accordance with this Section and the following additional provisions shall apply.

The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative. The Hearing Officer is not required to respond to substantive questions at the hearing or make commitments regarding the content of his or her recommendation.
Both the affected State agency and the vendor affected by a suspension of debarment may, at the discretion of the Hearing Officer, bring in witnesses to present testimony regarding the facts or circumstances that led to the determination to suspend or debar.
In addition to responding to questions of the Hearing Officer, the witnesses shall respond to questions by the affected vendor if, at the discretion of the Hearing Officer, the questions are allowed.

A) The Hearing Officer may allow questions when the subject matter of the question is relevant and the questioning will not unnecessarily delay the proceedings.

B) The Hearing Officer may deny questions when the subject matter seeks only to unnecessarily embarrass the witness or delay the proceedings.

e) Recommendation

After conclusion of the hearing, the Hearing Officer shall review the State agency's position, any information obtained from public comment (written or oral), the applicable Sections of the Procurement Code, other laws and associated rules and written policies and other information deemed relevant.

f) Decision of the CPO-GS

The CPO-GS shall, after considering the Hearing Officer's recommendation, make a decision in writing (which may be electronic) to uphold or overturn, in whole or in part, the State agency's decision.
The CPO-GS may request additional information from the Hearing Officer, or any other party, including supplemental comments or testimony from the interested parties, prior to making a decision.
The CPO-GS may adopt the recommendation, in whole or in part, or may reject the recommendation, or may write a separate decision.

g) Notice of Decision

The decision of the CPO-GS shall be provided to the impacted parties and State agencies. A copy of the decision shall be posted to the Bulletin.
Upon posting notice of a decision upholding the determination, the State agency may take action to have the contract executed.

h) Maintenance of Records

A copy of the public notices, any documents presented, any written comments, the recommendation of the Hearing Officer, and any decision of the CPO-GS shall be maintained in the procurement file. Any transcript or recording of a public hearing shall be available upon request.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.6010 Supply Management and Dispositions (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.6500 General (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.6510 No Agency Relationship (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.6520 Obligations of Participating Governmental Units (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.6530 Centralized Contracts - Estimated Quantities (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.6535 Centralized Contracts - Definite Quantities (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.7000 Severability

If any provision of this Part or any application of it to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or application and, to this end, the provisions of this Part are declared to be severable.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.7010 Government Furnished Property

If the State provides any property to the vendor in furtherance of the contract, the property shall remain the property of the State, but may be consumed by the vendor if necessary to complete the contract. Vendor will issue a receipt for the property and will be responsible for its safekeeping and for return of unused property to the State.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.7015 Inspections

a) Inspection of Plant or Site

The CPO-GS or a designee may enter a vendor's or subcontractor's plant or place of business and, pursuant to contract provisions, if any, to:

inspect supplies or services for acceptance by the State agency;
audit the books and records of any vendor or subcontractor;
investigate an action to debar or suspend a person from consideration for award of contracts pursuant to the Code;
determine whether the standards of responsibility have been met or are capable of being met;
determine if the contract is being performed in accordance with its terms; and
accomplish any other purpose permitted by law.

b) The presence or absence of an inspector shall not relieve the vendor or subcontractor from any requirements of the contract.

c) When an inspection is made in the plant or place of business of a vendor or subcontractor, the vendor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.

d) Inspection or testing of supplies and services performed at the plant or place of business of any vendor or subcontractor shall be performed so as to not unreasonably delay the work of the vendor or subcontractor.

e) On-site inspection of construction shall be performed in accordance with the terms of the contract.

History

Source: Amended at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.7020 Taxes, Licenses, Assessments and Royalties

a) The contractor shall pay all current and applicable city, county, State and federal taxes, licenses or assessments, including federal excise taxes, due on the performance of any contract, including, without limiting the foregoing, those required by the Federal Insurance Contribution Act (26 USC 3101 et seq.), the Federal Unemployment Tax Act (26 USC 3301 et seq.) and the State Unemployment Insurance Act [820 ILCS 405], together with all royalties due for any proprietary items. The contractor is exclusively liable for the payment of taxes to the respective governments. In the event the taxes, licenses, assessments or royalties, or any part thereof, are in the first instance charged to the State agency, the contractor shall, upon timely demand of the State agency, pay the State agency the amount of the tax, license, assessment or royalty due, plus all penalties that may have accrued.

b) The State agency is exempted by Section 3-5 of the Use Tax Act [35 ILCS 105/3-5] from paying any of the taxes imposed by that Act, and sales to the State agency are exempt by Section 2-5(11) of the Retailers' Occupation Tax Act [35 ILCS 120/2-5(11)] from any of the taxes imposed by that Act. The Illinois Department of Revenue, under 86 Ill. Adm. Code 130.2075(d), has declared that sale of materials to construction contractors for conversion into real estate for schools or charities are not taxable retail sales. A State agency making purchases of tangible personal property must provide its exemption numbers to vendors in order to receive an exemption from tax. Contractors making purchases from vendors of tangible personal property that will be incorporated into real estate owned by a State agency must present vendors with the State agency's exemption number and other required documentation in order to receive an exemption from tax.

c) Federal Excise Tax. Bidders must not include in their prices any allowance for payment under Federal Excise Tax if the State agency is exempt from those taxes. If an order or contract is awarded for the purchase of an item that is subject to the Federal Excise Tax, the State agency will furnish the vendor with an exemption certificate upon request.

History

Source: Amended at 36 Ill. Reg. 10729, effective August 6, 2012

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.7025 Written Determinations (repealed)

History

Source: Repealed at 36 Ill. Reg. 10729, effective August 6, 2012

44 Ill. Adm. Code 1.7030 No Waiver of Sovereign Immunity

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.

44 Ill. Adm. Code 1.8000 Authority

This Subpart is promulgated by the Chief Procurement Officer for General Services (CPO-GS) in accordance with the provisions of the Illinois Lottery Law (Lottery Law) [20 ILCS 1605]. This Subpart may be amended in accordance with the Lottery Law and the Illinois Administrative Procedure Act [5 ILCS 100/Art. 5].

History

Source: Added at 36 Ill. Reg. 16391, effective November 1, 2012

44 Ill. Adm. Code 1.8005 General

The Chief Procurement Officer shall adopt administrative rules, including emergency rules, to establish a procurement process to select a successor private manager if a private management agreement has been terminated. [20 ILCS 1605/9.1(o)]

History

Source: Added at 36 Ill. Reg. 16391, effective November 1, 2012

44 Ill. Adm. Code 1.8010 Selection Process

a) Notwithstanding any other law to the contrary, the Department of the Lottery (Lottery) shall select a private manager through a competitive request for qualifications process consistent with Section 20-35 of the Code. [20 ILCS 1605/9.1(e)]

b) Contents. The Request for Qualifications (RFQ) shall be in the form specified by the Lottery and shall contain at least the following information:

The type of services required;
A description of the work involved;
An estimate of when and for how long the services will be required;
The type of contract to be used;
A date by which proposals for the performance of the services shall be submitted;
A statement of the minimum information that the proposal shall contain, which may, by way of example, include:

A) The name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

B) If deemed relevant, the age of the offeror's business and average number of employees over a previous period of time, as specified in the RFQ;

C) The abilities, qualifications and experience of all persons who would be assigned to provide the required services;

D) A listing of other contracts under which services similar in scope, size or discipline to the required services were performed or undertaken within a previous period of time, as specified in the RFQ;

E) A plan, giving as much detail as is practical, explaining how the services will be performed;

Price or other proposed form of compensation (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package);
The factors to be used in the evaluation and selection process and their relative importance; and
A plan for post-performance review to be conducted by the Lottery after completion of services and before final payment and to be made part of the procurement file.

c) The RFQ may not require, stipulate, suggest or encourage a monetary or financial contribution, donation, incentive or economic investment as an explicit or implied term or condition for awarding the contract. The RFQ may not include a requirement that an individual or individuals employed by the Lottery or employed by Lottery advisors receive a consulting contract for professional services.

d) Prior to the publication of the RFQ in the Bulletin, the Lottery shall obtain written approval of the evaluation factors from the CPO-GS or a designee.

e) Evaluation. Proposals shall be evaluated only on the basis of evaluation factors stated in the RFQ. Price or other form of compensation will not be evaluated until ranking of all proposals and identification of the most qualified vendor. The minimum factors are:

The offeror's ability to market the Lottery to those residents who are new, infrequent or lapsed players of the Lottery, especially those who are most likely to make regular purchases on the internet;
The offeror's ability to address the State's concern with the social effects of gambling on those who can least afford to do so;
The offeror's ability to provide the most successful management of the Lottery for the benefit of the people of the State based on current and past business practices or plans of the offeror;
The offeror's past performance in servicing, equipping, operating or managing a lottery on behalf of Illinois, another State or foreign government and attracting persons who are not currently regular players of a lottery and maximizing revenue in an ethical and socially responsible manner [20 ILCS 1605/9.1(e)];
The plan for performing the required services;
Ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services, and the qualifications and abilities of personnel proposed to be assigned to perform the services;
The personnel, equipment and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and
A record of past performance of similar work.

f) Delivery, Receipt and Handling of Proposals

Receipt. Each proposal and modification received shall be date- and time-stamped, recorded in a log and stored in a secure manner (e.g., locked file cabinet, safe, locked room or other secure location) by the person responsible for receiving the proposals. If a proposal is opened for identification purposes or opened in error, the file shall state the reason for the error.
The Lottery shall maintain the confidentiality of the proposals. No information within the proposals shall be disclosed to anyone prior to opening. Lottery personnel may confirm receipt of the proposal to the offeror.
If a proposal is opened for identification purposes or in error, the procurement file shall include a signed statement explaining the reason for the mistake or error, including the name of every person involved. The proposal shall be resealed until the time set for opening.
Proposals shall be submitted to and opened by the Lottery.

A) Proposals and modifications shall be opened publicly at the time, date and place designated in the RFQ.

B) Opening shall be witnessed by a State witness or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that shall include the name of each offeror and a description sufficient to identify the supply or service item offered. The record of proposals shall be open to public inspection after award of the contract.

C) Proposals and modifications shall be opened in a manner designed to avoid disclosing contents to competitors. Only State personnel and contractual agents authorized by the Lottery may review the proposals prior to award.

g) Evaluation Team. Evaluation Team members shall be determined by the Lottery, be tailored to the particular solicitation, and include, as appropriate, technical or other personnel with expertise to ensure a comprehensive evaluation of offers. The Evaluation Team members shall be subject to the approval of the Director or his or her designee and committee members may be removed by the Director or his or her designee for failure to comply with instructions or directions.

h) Discussions

Discussions Permissible. The Evaluation Team may conduct discussions with any offeror to:

A) Determine in greater detail the offeror's qualifications; and

B) Explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach. The Lottery may allow changes to the proposal based on those discussions.

No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors, and the Evaluation Team shall not disclose any information contained in any proposal with any other offeror or person or entity other than personnel authorized by the Director or his or her designee until after award of the proposed contract.
No discussions with offerors may occur unless the entire Evaluation Team is present.

i) Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation and discussion, the Lottery initially shall rank the acceptable offerors in the order of their respective qualifications compared to the qualifications outlined in the RFQ and not considering price.

j) Evaluation of Pricing Data or Other Proposed Compensation

Pricing and other forms of proposed compensation submitted for all acceptable proposals timely submitted shall be opened and the offerors shall be ranked only after the initial ranking under subsection (i) has been completed.

k) Hearing

After evaluation of all offerors' proposals, the Lottery shall select offerors as finalists.
The Lottery shall hold a public hearing on the finalists' proposals.
At least 7 days prior to the public hearing, the Lottery must provide public notice that includes:

A) The date, time and place of the hearing;

B) The subject matter of the hearing;

C) A brief description of the private management agreement to be awarded;

D) The identity of the offerors selected as finalists; and

E) The address and telephone number of the Lottery.

At the public hearing, the Lottery shall:

A) Provide sufficient time to allow each of the finalists to present its proposal. Each finalist shall be afforded an identical, maximum amount of time for presentation, including any extensions of time that may be granted during the course of the hearing.

B) Allow comments from the public and offerors that were not selected as finalists.

l) Negotiation of Contract

General. The Lottery shall designate a negotiation committee to attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The Lottery may, in the interest of efficiency, negotiate with the next highest ranked vendor while negotiating with the best qualified vendor.
The Lottery shall conduct compensation negotiations with the vendor determined to be most qualified based upon the evaluation factors contained in the RFQ prior to the publication of any notice of award.
Elements of Negotiation. At a minimum, contract negotiations shall be directed toward:

A) Making certain that the offeror has a clear understanding of the scope of the work, specifically the essential requirements involved in providing the required services, and that the plan for service delivery is feasible;

B) Determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) Agreeing upon compensation that is fair and reasonable and based upon realistic revenue projections, taking into account the estimated value of the required services and the scope, complexity and nature of those services.

Successful Negotiation of Contract with Best Qualified Offeror

A) If compensation, contract requirements and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is cancelled.

B) Compensation must be determined in writing to be fair and reasonable by the Director of the Lottery (Director). The negotiation committee shall prepare a compensation analysis and recommendation for consideration by the Director. The analysis shall be based on specifications contained in the RFQ and include, but not limited to, the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, other available pricing information and the Lottery's identified budget.

Failure to Successfully Negotiate Contract with Best Qualified Offeror

A) If compensation, contract requirements or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons shall be placed in the file. The Lottery shall advise the offeror of the termination of negotiations.

B) Upon failure to successfully negotiate a contract with the best qualified offeror, the Lottery may enter into negotiations with the next most qualified offeror.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

44 Ill. Adm. Code 1.8015 Lottery Advisors

a) The Lottery may retain the services of an advisor to assist in the preparation of the terms of the request for qualifications and the selection of the private manager.

b) Any prospective advisor seeking to assist the Lottery must disclose all material business or financial relationships during the past three years with:

Any potential offeror; and
Any contractor or subcontractor presently providing supplies, services or equipment to the Lottery.

c) For the purpose of this Section, "material business or financial relationship" includes, but is not limited to, those relationships in which the individual (or his or her spouse or immediate family member) benefits by receiving a salary, royalty, intellectual property rights, consulting fee, honoraria, ownership interest (e.g., stocks, stock options or other ownership interest, excluding diversified mutual funds), any benefit associated with licensure, or other benefit. These benefits are usually, but not necessarily, associated with roles such as employment, management position, independent contractor (including contracted research), lobbying, consulting, speaking or teaching, membership on advisory committees or review panels, board membership, and other activities for which some form of remuneration is received or expected. There is no set minimal dollar amount for relationships to be considered material.

d) All disclosures made under this Section shall include both domestic and international business or financial relationships.

e) After evaluating the material business or financial relationships of each prospective advisor, the Lottery may select an advisor so long as the Department does not deem any of the business or financial relationships of the advisor likely to impair the advisor's objectivity.

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.8020 Public Hearing (repealed)

History

Source: Repealed at 38 Ill. Reg. 20884, effective October 31, 2014

44 Ill. Adm. Code 1.8025 Award

a) Prior to the Lottery's selection of the final offeror, the CPO-GS shall certify that the procurement process provided for under this Subpart has been followed. Notice of this determination shall be published on the Bulletin.

b) The Lottery shall select a final offeror as private manager by publication of notice in the Bulletin. This notice shall include a detailed explanation and the reasons why the final offeror is superior to other offerors and will provide management services in a manner that best achieves the objectives of the Illinois Lottery Law. [20 ILCS 1605(h)]

c) Written notice of award shall be public information and made a part of the contract file. The Lottery shall publish the names of its responsible decision makers, the successful vendor, a contract reference number or other identifier, and the value of the contract. Publication shall be on the Bulletin.

d) Within 7 days after award of the contract and subject to provisions of the Freedom of Information Act, the Lottery shall make available for public inspection and copying all pre-award, post-award, administration and close-out documents relating to the contract. [30 ILCS 500/20-155]

History

Source: Amended at 46 Ill. Reg. 10208, effective June 2, 2022

Chapter I Chief Procurement Officer for General Services

Part 1 Chief Procurement Officer for General Services Standard Procurement

44 Ill. Adm. Code 1.8030 Action to Contest Selection

a) Any action to contest the selection of the private manager by the Lottery must be brought within 14 calendar days after the publication of the notice provided for in Section 1.8025(b).

b) Any action to contest the final selection will be reviewed by the Protest Review Office in accordance with Section 1.5550. The CPO-GS shall make the final determination on the merits of any action to contest the final selection of the private manager.

c) Protest Review Officer

d) Submission of Protest

A protesting party must submit a protest in writing to the PRO identified in the solicitation document. Fax and email qualify as writing, but the PRO does not guarantee receipt using those means.
The protest must be physically received by the PRO at the location specified. A postmark or other carrier mark prior to the due date and time is not sufficient to show physical receipt.

B) In regard to rejection of individual bids or proposals or awards, the protest must be received by close of business no later than 14 days after the protesting party knows or should have known of the facts giving rise to the protest to ensure consideration and, in any event, must be received before execution of the applicable contract.

Any notice posted to the Bulletin establishes the "known or should have known" date for the subject matter of the notice.
Protests must be clearly marked on the delivery container, the fax cover sheet or the email subject line.
The written protest shall include as a minimum the following:

A) the name and address of the protesting party;

B) identification of the procurement and, if a contract has been awarded, its number or other identifier;

D) supporting exhibits, evidence or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated. If submitting the protest by fax, supporting documentation over 20 pages in length may not be included without authorization. If the protest is by fax or email, the protesting party may be required to submit documentation by mail or carrier within 2 business days after the request; and

E) specific relief sought.

e) Requested Information

The protesting party must supply any additional information requested by the PRO within the time periods set in the request. If the protesting party fails to comply with this request, the PRO shall consider the protest on the basis of available information or may deny the protest.

f) Stay of Procurements During Protest

Unless the CPO-GS determines the needs of the State require an immediate execution of a contract, the following apply:

When a protest has been timely filed and before an award has been made, the Lottery shall make no award of the contract until the protest has been resolved.
If timely received but after award, the award shall be stayed without penalty to the State.

g) Resolution

The CPO-GS will resolve the protest by means of a written determination. The resolution may include affirming the State's initial decision, in whole or in part, or revoking the State's decision in whole or in part.

h) Effect of Judicial Proceedings

If an action concerning the protest has commenced in a court or administrative body, the CPO-GS may defer resolution of the protest pending the judicial or administrative determination.

History

Source: Added at 36 Ill. Reg. 16391, effective November 1, 2012

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.1 Title

This Part may be cited as the Higher Education Standard Procurement Rules.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.3 Authority

a) This Part is promulgated by the Chief Procurement Officer for Public Institutions of Higher Education (CPO-HE) in accordance with the provisions of the Illinois Procurement Code (Code) [30 ILCS 500]. This Part may be amended in accordance with the Code and the Illinois Administrative Procedure Act [5 ILCS 100/5].

b) Section 10-20 of the Code creates four Chief Procurement Officers: one for procurements for construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board; one for procurements for all construction, construction-related services, operation of any facility, and the provision of any construction or construction-related services or activity committed by law to the jurisdiction or responsibility of the Illinois Department of Transportation; one for all procurement actions made by a public institution of higher education; and one for all other procurements. For purposes of this Part, any reference to Chief Procurement Officer or CPO-HE means the Independent Chief Procurement Officer for Public Institutions of Higher Education unless the context indicates otherwise. This Part applies to all procurement actions and procurement rulemaking under the jurisdiction of the CPO-HE.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.5 Policy

The principles of competitive bidding and economical procurement practices shall apply to all purchases and contracts by or for the universities, except as otherwise provided by law, this Part and other applicable rules. It is the policy of the CPO-HE that all activities of the State Purchasing Officers (SPOs) and others conducting procurement related activity maximize the value of the expenditure of public funds in procuring contracts, and that those appointed to conduct procurement related activity act in a manner that maintains public trust in the integrity of the process.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.8 Implementation of This Part

a) This Part establishes rules necessary and appropriate to implement the procurement authority granted by the Code to the CPO-HE relating to the procurement of supplies, including inventory level, services, real estate and capital improvement leases, and, as applicable, construction and concessions, and necessary rulemaking under the authority of the Code.

b) This Part is intended to make procurement actions of the public universities uniform and consistent among and within the universities under the jurisdiction of the CPO-HE to facilitate participation in procurements, encourage competition, and ensure that procurements are conducted in a fair and open manner. Implementation by and within the universities shall be consistent with this Part. Operational interpretations are to be made in a flexible manner designed to secure the universities' needs and protect the interests of the universities and the State of Illinois.

c) The CPO-HE and each SPO and PCM owe a fiduciary duty in carrying out their responsibilities under the Code.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.9 Application

a) The Code and this Part shall apply regardless of the source of the funds with which the contracts are paid, including federal assistance moneys, except as provided in Sections 4.10 and 4.13 of this Part [30 ILCS 500/1-10(b) and 1-13(a)].

b) The Code and this Part apply to procurements for which bidders, offerors, potential contractors, contractors or vendors were first solicited on or after July 1, 1998. [30 ILCS 500/1-10(a)]

c) For purposes of this Part, the term bidder, offeror, potential contractor, contractor or vendor may be used interchangeably unless the context indicates otherwise.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.10 General Exemptions

a) Except as specifically provided in the Code, the Code and this Part do not apply to:

contracts between the State and its political subdivisions or other governments, or between State governmental bodies. (For purposes of this subsection (a), "governmental bodies" includes the State universities and their governing boards, community colleges and their governing boards and school districts. This provision applies to contracts between governmental entities; it does not apply to State universities use of contracts established by other governmental entities);
grants, except for the filing requirements of Section 20-80 of the Code;
purchase of care;
hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual;
collective bargaining contracts;
purchase of real estate, except that notice of this type of contract with a value of more than $25,000 must be published in the Procurement Bulletin within 10 calendar days after the deed is recorded in the county of jurisdiction (This applies to purchases whether outright or by means of an installment purchase. The exercise of an option to purchase in a real estate lease is exempt, but the underlying lease is not exempt from this Part). The notice shall identify the real estate purchased, the names of all parties to the contract, the value of the contract, and the effective date of the contract;
contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the chief legal counsel to the Governor shall give his or her prior approval when the procuring agency is one subject to the jurisdiction of the Governor, and provided that the chief legal counsel of any other procuring entity subject to the Code shall give his or her prior approval when the procuring entity is not one subject to the jurisdiction of the Governor. Anticipated litigation is that which a university may prosecute or defend before a court or administrative body and actions necessary to prepare for and conduct the effective legal prosecution or defense of litigation, including, but not limited to, the retention of counsel, investigators, expert witnesses and court reporters. This Section is applicable to equipment or services necessary in the furtherance of covert activities lawfully conducted by a university;
Procurement expenditures by the Illinois Conservation Foundation when only private funds are used;
Public-Private agreements entered into according to the procurement requirements of Section 20 of the Public-Private Partnerships for Transportation Act and design-build agreements entered into according to the procurement requirements of Section 25 of the Public-Private Partnerships for Transportation Act;
Contracts for legal, financial, and other professional and artistic services entered into on or before December 31, 2018 by the Illinois Finance Authority in which the State of Illinois is not obligated. Such contracts shall be awarded through a competitive process authorized by the Board of the Illinois Finance Authority and are subject to Sections 5-30, 20-160, 50-13, 50-20, 50-35, and 50-37 of the Code, as well as the final approval by the Board of the Illinois Finance Authority of the terms of the contract;
Contracts for services, commodities, and equipment to support the delivery of timely forensic science services in consultation with and subject to the approval of the CPO as provided in Section 5-4-3a(d) of the Unified Code of Corrections [730 ILCS 5], except the requirements of Sections 20-60, 20-65, 20-70, and 20-160 and Article 50 of the Code; however, the CPO may, in writing with justification, waive any certification required under Article 50 of this Code. For any contracts for services that are currently provided by members of a collective bargaining unit, the applicable terms of the collective bargaining agreement shall be followed.
Contracts for participation expenditures required by a domestic or international trade show or exhibition of an exhibitor, member, or sponsor;
Contracts with a railroad or utility that require the State to reimburse the railroad or utilities for the relocation of utilities for construction or other public purpose. [30 ILCS 500/1-10(b)]

b) After October 1, 2017, universities shall publish in the Bulletin notice of each contract entered into under Section 1-10(b) of the Code, except for those procured under subsections (a)(1), (a)(2) and (a)(5) of this Section. Notice shall be published within 14 calendar days after contract execution. The CPO-HE shall prescribe the form and content of the notice.

c) The CPO-HE shall submit a report to the Governor and General Assembly no later than November 1 of each year that shall include, at a minimum, an annual summary of the monthly information reported to the CPO-HE by the universities. The CPO-HE will structure the required Bulletin publication to serve as a university's report, but the CPO-HE may request a report or additional information from a university if Bulletin publication is insufficient. At a minimum, this information published to the Bulletin shall include:

the name of the contractor;
a description of the supply or service provided;
the total amount of the contract;
the term of the contract; and
the exception to the Code utilized.

d) A copy of any or all of these contracts shall be made available to the CPO-HE within 14 days after request, unless a more immediate response is required.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.13 Additional Exemptions Applicable to Higher Education

a) Except as provided in this Section, the Code shall not apply to procurements made by or on behalf of universities for any of the following:

Memberships in professional, academic, research, or athletic organizations on behalf of a university, an employee of a university, or a student at a university.
Procurement expenditures for events or activities paid for exclusively by revenues generated by the event or activity, gifts or donations for the event or activity, private grants, or any combination thereof.
Procurement expenditures for events or activities for which the use of specific potential contractors is mandated or identified by the sponsor of the event or activity, if the sponsor is providing a majority of the funding for the event or activity.
Procurement expenditures necessary to provide athletic, artistic or musical services, performances, events, or productions by or for a university.
Procurement expenditures for periodicals, books, subscriptions, database licenses, and other publications procured for use by a university library or academic department, except for expenditures related to procuring textbooks for student use or materials for resale or rental.
Procurement expenditures for placement of students in externships, practicums, field experiences, and for medical residencies and rotations.
Contracts for programing and broadcast license rights for university-operated radio and television stations.
Procurement expenditures necessary to perform sponsored research and other sponsored activities under grants and contracts funded by the sponsor or by sources other than State appropriations.
Contracts with a foreign entity for research or other educational activities, provided the foreign entity either does not maintain an office in the United States or is the sole source of the service or product. [30 ILCS 500/1-13(b)]

b) Except as provided in this Section, the provisions of the Code shall not apply to contracts for:

medical supplies;
medical services necessary for the direct delivery of patient care and treatment at medical, dental, or veterinary teaching facilities utilized by:

A) Southern Illinois University;

B) the University of Illinois; or

C) any university-operated health care center or dispensary that provides care, treatment, and medications for students, faculty and staff. [30 ILCS 500/1-13(b-5)]

c) Procurements made on or behalf of universities for the fulfillment of a grant shall be made in accordance with the Code to the extent practicable. [30 ILCS 500/1-13(c)].

A university may request a waiver of contract, registration, certification, and hearing requirements if compliance is impracticable.
A university shall provide the CPO-HE with specific reasons for the waiver, including the necessity to contract with a particular contractor, and shall certify the university's good faith efforts to comply with the provisions of the Code. The CPO-HE shall provide a written justification for any waiver granted to a university.
Notwithstanding any waiver of the registration requirements of Section 20-160 of the Code, no business entity and any affiliated entity or person may make campaign contributions if otherwise prohibited under Section 50-37 of the Code.
For purposes of this Section, "grant" means non-appropriated funding provided by a federal or private entity to support a project or program administered by a public institution of higher education and any non-appropriated funding provided to a sub-recipient of the grant. [30 ILCS 500/1-13(f)]

d) Notice of each contract entered by a university identified in subsections (a) and (b) and each waiver issued in subsection (c) shall be published in the Bulletin within 14 calendar days after contract execution. The CPO-HE shall prescribe the form and content of the notice.

e) The CPO-HE shall submit a report to the Governor and General Assembly no later than November 1 of each year that shall include, at a minimum, an annual summary of the monthly information reported to the CPO-HE by the universities. The CPO-HE will structure the required Bulletin publication to serve as the university's report, but the CPO-HE may request a report or additional information from a university if Bulletin publication is insufficient. At a minimum, this information published to the Bulletin shall include:

the name of the contractor;
a description of the supply or service provided;
the total amount of the contract,
the term of the contract;
the exception to the Code utilized; and
the justification for any waiver granted under subsection (c).

f) A copy of any or all of these contracts shall be made available to the CPO-HE within 14 days after request, unless a more immediate response is required.

History

Source: Former Section 4.13 repealed at 40 Ill. Reg. 456, effective January 15, 2016; new Section 4.13 added at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.14 Certification, Hearing and Registration Waivers Applicable to Higher Education (repealed)

History

Source: Repealed at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.15 Definition of Terms Used in This Part

"Amendment" − A written modification to a contract. An amendment may memorialize an action authorized by specific language in the contract (e.g., exercise of an option or showing price decrease or increase based on CPI), or may memorialize nonmaterial changes (e.g., change in names of notice contacts or number of periodic status meetings). An amendment may also be a change order as defined in this Section.

"Best Interest of the State" – For purposes of this Part, best interest of the State also includes best interest of the procuring university.

"Bid" − The response submitted by a bidder in a competitive sealed bidding process, to an Invitation for Bid or to a multi-step sealed bidding process.

"Bidder" − One who submits a response in a competitive sealed bidding process, to an invitation for bid, or to a multi-step sealed bidding process. [30 ILCS 500/1-15.02]

"Brand Name or Equal Specification" − A specification that uses one or more manufacturers' names or catalogue numbers to describe the standard of quality, performance and other characteristics needed to meet university requirements and that allows the submission of equivalent products.

"Brand Name Specification" − A specification limited to one or more items by manufacturers' names or catalogue numbers.

"Building Services" – Repairs to or maintenance of the structure, but does not include janitorial, window washing services, or services provided by university employees.

"Bulletin" – The volume of the Illinois Procurement Bulletin published by the CPO-HE, unless the context clearly means the volume of another CPO or the Illinois Procurement Bulletin generally.

"Change Order" – A change in a contract term, other than as specifically provided for in the contract, which is determined necessary to address needs that are best met by the contract holder, and that authorizes or necessitates any increase or decrease in the cost of the contract or the time for completion. [30 ILCS 500/1-15.12] A change order is an amendment to the contract.

"Chief Procurement Office" – The offices to which the Chief Procurement Officers are appointed pursuant to Section 10-20 of the Code. [30 ILCS 500/1-15.13]

"Chief Procurement Officer" or "CPO-HE" – The Chief Procurement Officer for Public Institutions of Higher Education, as created by Section 10-20(3) of the Code, or a designee.

"Code" − The Illinois Procurement Code [30 ILCS 500].

"Concession" – The right granted by a license, lease or other agreement to use State property, whether tangible or intangible. Also includes the right to engage in a certain activity on the lessor's property (e.g., a refreshment or parking concession).

"Construction" – As used in this Part, building, altering, repairing, improving, or demolishing any public structure or building, or making improvements of any kind to public real property. Construction does not include the routine operation, routine repair or routine maintenance of existing structures, buildings, or real property. [30 ILCS 5/1-15.20]

"Construction Agency" – The Capital Development Board for construction or remodeling of State-owned facilities; the Illinois Department of Transportation for construction or maintenance of roads, highways, bridges, and airports; the Illinois Toll Highway Authority for construction or maintenance of toll highways; the Illinois Power Agency for construction, maintenance, and expansion of Agency-owned facilities, as defined in Section 1-10 of the Illinois Power Agency Act [20 ILCS 3855]; and any other State agency (including universities) entering into construction contracts as authorized by law or by delegation from the Chief Procurement Officer. [30 ILCS 500/1-15.25]

"Construction Manager Services" – Services provided in the planning, pre-construction and construction phases of a construction project.

"Construction-related Professional Services" – Services performed that are governed by the Architectural, Engineering, and Land Surveying Qualifications‑Based Selection Act [30 ILCS 535]. "Professional Services" as used in this Part means those services within the scope of the practice of architecture, professional engineering, structural engineering, or registered land surveying, as defined by the laws of this State.

"Construction Support" – Equipment, supplies and services necessary to the operation of a construction agency's construction program, but does not include construction-related services.

"Consulting Services" – Services provided by a business or person as an independent contractor to advise and assist a university in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of a university. The services may or may not rise to the level of professional and artistic as defined in the Code and this Part.

"Contract" − All types of State agreements, regardless of what they may be called, for the procurement, use, or disposal of supplies, services, professional or artistic services, or construction or for leases of real property for which the State is the lessee, or capital improvements, and including renewals, master contracts, contracts for financing through use of installment or lease-purchase arrangements, renegotiated contracts, amendments to contracts, and change orders. [30 ILCS 500/1-15.30] The term "contract" includes, but is not limited to purchase, installment purchase, lease and rental contracts. The term contract, as used in the Code and this Part, does not include: supplies or services the terms governing which are established by tariff of the Illinois Commerce Commission or the Federal Communications Commission, and for which there is no authorized competition, bonds, Certificates of Participation or contracts relating to bonds or Certificates of Participation issued by or on behalf of a State agency when the contractor or vendor is neither selected nor paid by the State agency. Also referred to as a "State contract" or a "university contract".

"Contract Award" – Except as otherwise defined in this Section for specific categories of procurements, the determination that a particular vendor has been selected from among other potential vendors to receive a contract, subject to resolution of any protest and the successful completion of final negotiations. "Contract award" is evidenced by the posting of a Notice of Award or a Notice of Intent to Award to the respective volume of the Illinois Procurement Bulletin after all State agency required and SPO approvals have been obtained. [30 ILCS 500/15-25(b-5)]

"Contract Let" – The act of awarding a contract to a bidder that responded to an invitation for bids as part of a letting.

"Contractor" or "Vendor" − An individual, firm, partnership, corporation, joint venture or other legal entity that seeks, or has entered into, a contract with a State agency as defined in Section 1-15.30 of the Code. The terms contractor and vendor are used interchangeably for the purposes of the Code and this Part. In appropriate circumstances, the term shall also include subcontractors.

"Day" − Calendar day. In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a State or university holiday, as applicable, in which event the period shall run to the end of the next business day.

"Designee" – A person or category of persons identified by the CPO-HE or an SPO, in writing, to exercise procurement authority or to assist with the procurement process. A designee acts under procurement authority of the CPO‑HE or SPO and has the responsibility for taking procurement actions in accordance with applicable laws, rules and policies, as limited by the terms of the delegation.

"Domestic Product" – A product that meets the requirements of the Procurement of Domestic Products Act [30 ILCS 517].

"Electronic Procurement" – The conducting of some or all procurement functions over the internet. [30 ILCS 500/1-15.40]

"Emergency Statement" – The statement filed with the Auditor General and the Procurement Policy Board setting forth the actual or estimated amount expended, the name of the contractor involved, and the conditions and circumstances requiring the emergency procurement.

"Emergency Contract Award" – For purposes of an emergency contract, an emergency contract is awarded on the earlier of the date a State agency communicates to a vendor to start work, notice is published on the Illinois Procurement Bulletin identifying the vendor of the required supplies or services, or the date the contract is signed by both parties.

"Estimated Cost" – The amount expected to be paid for a procurement transaction. It is representative of all known work and may include potential and expected unscheduled work arising out of the requirements. The total estimated contract cost is not necessarily equivalent to the maximum cost.

"Evaluation Criteria" – The standards or factors by which the vendor and its bid or offer may be evaluated. These criteria may include, but are not limited to, specialized experience, technical qualifications, competence, capacity to perform, past performance, experience with similar projects, assignment of personnel to the project, and other appropriate factors.

"Expatriated Entity" – A foreign incorporated entity that is treated as an inverted domestic corporation under section 835(b) of the Homeland Security Act of 2002 (6 USC 395(b)) or any subsidiary of that entity. The federal regulations found at 26 CFR 1.7874-3 may be used to determine when 6 USC 395(b)(3) applies. [30 ILCS 500/1-15.120]

"Fiduciary Duty" – A CPO's, SPO's, or PCM's obligation to serve the best interest of the State of Illinois.

"Germane" – Closely or significantly related to, arising out of, or directly incidental to the original contract. Additional work or materials are germane if they are of small or minor importance, or are ordinary and comparatively unimportant departures from the details in the specifications. Changes that are a substantial departure from the nature, scope or scale of the original contract are not germane. (See Attorney General Opinion S-939.)

"Grant" – Unless otherwise specified, the furnishing by the State of assistance, whether financial or otherwise, to any person to support a program authorized by law. It does not include an award the primary purpose of which is to procure an end product for the direct benefit or use of the State agency making the grant, whether in the form of goods, services, or construction. A contract that results from such an award is not a grant and is subject to the Code. [30 ILCS 500/1-15.42] When a grantor provides a grant or award to a university that authorizes or allows the university to award subgrants or subawards, the subgrant or subaward shall also be deemed a grant that is made by the university as agent of the grantor.

"Grounds Services" – Lawn care, landscaping, and snow and ice removal services.

"HUBZone Business" – A business that operates and employs people in Historically Underutilized Business Zones (HUBZone) as designated by the federal HUBZone Empowerment Act (15 USC 657a). [30 ILCS 500/45-95(a)].

"Invitation for Bids" or "IFB" − The process by which a purchasing agency requests information from bidders, including all documents, whether attached or incorporated by reference, used for soliciting bids. [30 ILCS 500/1-15.45] Also referred to as "Competitive Sealed Bidding".

"Items" − Anything that may be procured under the Code and this Part.

"Letting" – A construction agency's act of advertising an invitation for bids for one or more construction projects.

"Master Contract" – A definite quantity, indefinite quantity or requirements contract awarded under the Code through which universities may place purchase orders. Master contracts include use by a single university, or for multiple State purchasing entities or other entities as authorized under the Governmental Joint Purchasing Act [30 ILCS 525].

"Multiple Award" – An award that is made to two or more bidders or offerors for similar supplies, services, or construction-related services.

"Natural Resources Services" – Services consist of non-supervisory activities of a routine, repetitive, non-discretionary nature not needing special expertise, training or education. These services include, but are not limited to, assisting in the operation of tree nurseries, fish hatcheries, game farms and sanctuaries; cleaning and maintenance of specialized facilities; repairing fences and building cages; mowing; and trail and ancillary facility repair.

"Offer" or "Proposal" – The response submitted by an offeror in a competitive sealed proposal process or to a Request for Proposals or Request for Information for real estate or capital improvement leases.

"Offeror" or "Respondent" – Any person who submits a proposal in response to a competitive sealed proposal process or a request for proposals. [30 ILCS 500/1-15.52]

"Person" – Any business, public or private corporation, partnership, individual, union, committee, club, unincorporated association or other organization or group of individuals, or other legal entity. [30 ILCS 500/1-15.55]

"Procurement Compliance Monitor" or "PCM" – An individual appointed by the Executive Ethics Commission under Section 10-15 of the Code to oversee and review procurement processes.

"Procurement Officer" − The Chief Procurement Officer or appropriate State Purchasing Officer who is responsible for the particular procurement action.

"Procurement Policy Board" or "PPB" – The body created by Section 5-5 of the Code.

"Proposal" or "Offer" − The response to a Request for Proposals or Request for Information for real estate or capital improvement leases.

"Protest Review Office" – The office of the person designated in the solicitation document to whom protests must be directed. This person will respond to or coordinate the response to the protest.

"Purchase of Care" − A contract with a person for the furnishing of medical, educational, psychiatric, vocational, rehabilitative, social, or human services directly to a recipient of a State aid program [30 ILCS 500/1-15.68]. Purchase of care includes the furnishing of services directly to recipients of State aid programs or applicants for a State aid program. Purchase of care contracts may include some services that are administrative in nature, as long as the contract primarily provides direct care to recipients of State aid programs. Examples of purchase of care contracts include, but are not limited to, contracts related to care coordination programs under Title XIX of the Social Security Act, including contracts with managed care organizations; primary care case management services; prepaid ambulatory health plans; prepaid inpatient health plans; and direct care services provided under the Children and Family Services Act [20 ILCS 505]. Contracts that do not pertain to direct services to State aid recipients or that are primarily administrative in nature exceed the scope of the definition of a purchase of care contract and are not exempt from the requirements of the Code.

"Purchasing Agency" – A State agency that enters into a contract at the direction of a State Purchasing Officer authorized by a Chief Procurement Officer or at the direction of a Chief Procurement Officer. [30 ILCS 500/1-15.70]

"Quality Based Selection" or "QBS" – The source selection method for architectural, engineering and land surveying services, as defined by the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

"Qualified HUBZone Small Business Concern" – A business that qualifies under the HUBZone program administered by the U.S. Small Business Administration. [30 ILCS 500/45-95(a)]

"Qualified Products List" − An approved list of supplies described by model or catalogue numbers that, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.

"Renewal" – An agreement between the parties to a contract to authorize an additional contract period under the terms and conditions of the renewal provision in the original contract. Any renewal of a real estate lease for which a renewal provision is not present may be allowed in accordance with Sections 4.4015 and 4.4025.

"Request for Information" or "RFI" – The process of requesting information from interested parties to aid the State in decision making. This type of RFI is not a procurement method and will not result in a participant receiving a contract.

"Request for Information for Real Property or Capital Improvement Leases" or "RFI-Real Property Leases" or "RFI-RPL" – The process of seeking proposals for leases of real property or capital improvements as outlined under Article 40 of the Code.

"Request for Proposals" or "RFP" − The process by which a purchasing agency requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals. [30 ILCS 500/1-15.75]

"Request for Proposals-Professional and Artistic" or "RFP-P&A" − The process by which a purchasing agency requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals for professional and artistic services as defined in Section 1-15.60 of the Code.

"Requesting Agency" – The agency that requests that the CPO-HE or SPO conduct a procurement for its use. All procurements reserved to the CPO-HE that have not been delegated must be initiated by a purchase request.

"Responsible Bidder", "Responsible Potential Contractor" or "Responsible Offeror" − A person who has the capability in all respects to perform fully the contract requirements and who has the integrity and reliability that will assure good faith performance. A responsible bidder or offeror shall not include a business or other entity that does not exist as a legal entity at the time a bid or offer is submitted for a State contract. [30 ILCS 500/1-15.80]

"Responsive Bidder" − A person who has submitted a bid that conforms in all material respects to the Invitation for Bids. [30 ILCS 500/1-15.85]

"Responsive Offeror" – A person who has submitted an offer that conforms in all material respects to the Request for Proposals. [30 ILCS 500/1-15.86]

"Services" − The furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance and its financing. [30 ILCS 500/1-15.90]

"Site Technician Services – These services consist of non-supervisory activities of a routine, repetitive, non-discretionary nature not needing special expertise, training or education. These services include, but are not limited to, the maintenance of the site, including operating small farm-type equipment and trucks that do not require a Class C or D driver's license.

"Solicitation" – The document (e.g., IFB, QBS, RFP, RFP-P&A, or RFI-Real Property Lease) posted to the Procurement Bulletin requesting interested parties to submit a response for evaluation by the State. A request for information to determine if there is any interest on the part of a university in the supplies or services of a vendor or vendors, or on the part of a vendor or vendors in providing the supplies or services, is not considered a solicitation.

"Specification for a Common or General Use Item" − A specification that has been developed and approved for repeated use in procurements.

"Specifications" – Any description, provision or requirement pertaining to the physical or functional characteristics or of the nature of a supply, service or other item to be procured under a contract. Specifications may include a description of any requirement for inspecting, testing or preparing a supply, service, professional or artistic service, construction, or other item for delivery. [30 ILCS 500/1-15.95]

"State" – As appropriate, collectively or individually, the State of Illinois, a State agency as defined in this Section, and all officers and employees of the foregoing.

"State Agency" – Generally, all boards, commissions, agencies, institutions, authorities, and bodies politic and corporate of the State, created by or in accordance with the constitution or statute, of the executive branch of State government and does include colleges, universities, and institutions under the jurisdiction of the governing boards of the University of Illinois, Southern Illinois University, Illinois State University, Eastern Illinois University, Northern Illinois University, Western Illinois University, Chicago State University, Governors State University, Northeastern Illinois University, and the Board of Higher Education. However, this term does not apply to public employee retirement systems or investment boards that are subject to fiduciary duties imposed by the Illinois Pension Code [40 ILCS 5] or to the University of Illinois Foundation or any other university foundation. "State agency" does not include units of local government, school districts, community colleges under the Public Community College Act [110 ILCS 805], and the Illinois Comprehensive Health Insurance Board. [30 ILCS 500/1-15.100] For purposes of this Part, State agency means only State universities that are under the jurisdiction of the CPO-HE, unless the context indicates otherwise.

"State Purchasing Officer" or "SPO" – An individual appointed by the CPO-HE in accordance with Section 10-10 of the Code and assigned to exercise procurement authority at the direction of the CPO-HE.

"State Witness" – An employee of the State who observes the opening of bids or sealed proposals.

"Subcontract" – A contract between a person and another person who has a contract subject to the Code, pursuant to which the subcontractor provides to the contractor or, if the contract price exceeds $50,000, another subcontractor some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency. For purposes of the Code, a "subcontract" does not include purchases of goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to the Code. [30 ILCS 500/1-15.107]

"Subcontractor" – A person or entity who enters into a contractual agreement with a total value of $50,000 or more with a person or entity who has a contract subject to the Code pursuant to which the person or entity provides some or all of the goods, services, real property, remuneration or other monetary forms of consideration that are the subject of the primary State contract, including subleases from a lessee of a State contract. For purposes of the Code, a person or entity is not a "subcontractor" if that person only provides goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to the Code. [30 ILCS 500/1-15.108]

"Subfactor" – A subset of a main evaluation factor. Main evaluation factors are identified in the solicitation.

"Supplies" − All personal property, including, but not limited to, equipment, materials, printing, and insurance and the financing of those supplies that can be procured regularly or are available on the commercial market. [30 ILCS 500/1‑15.110] For purposes of this Part, the term "goods" is equivalent to the term "supplies".

"Supplier" – Any person or entity providing supplies, including, but not limited to, equipment, materials, printing, and insurance, and the financing of those supplies that can be procured regularly or are available on the commercial market.[30 ILCS 500/1-15.111]

"University" – The colleges, universities and institutions under the jurisdiction of the governing boards identified in the definition of "state agency" in accordance with Section 1-15.100 of the Code. For purposes of the Code and this Part only, "university" also includes the Illinois Math and Science Academy. The terms "university" and "public institution of higher education" are used interchangeably for the purposes of the Code and this Part.

"Unsolicited Bid" or "Unsolicited Offer" or "Unsolicited Proposal" − Any bid, offer or proposal other than one submitted in response to a solicitation.

"Utilization Plan" − A form and additional documentations included in all bids or proposals that demonstrate a vendor's proposed utilization of vendors certified by the Business Enterprise Program (see 30 ILCS 575) and the Veterans Business Program (Section 45-57 of the Code) to meet the targeted goal. The utilization plan shall demonstrate that the vendor has either:

met the entire contract goal; or

requested a full or partial waiver and made good faith efforts towards meeting the goal. [30 ILCS 575/2(A)(11)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.25 Property Rights

No person shall have any right to a specific contract with the State unless that person has a contract that has been signed by an officer or employee of the purchasing agency with appropriate signature authority. The State shall be under no obligation to issue an award or execute a contract. [30 ILCS 500/1-25] No person who participates in a procurement action has any right to an award or subsequent contract. No notice of award can be issued and no contract can be executed without the appropriate determination of all necessary State parties, including, as applicable, the CPO-HE, SPO, university purchasing director, or other required university staff. Receipt of a solicitation or other procurement documents, or submission of any response to a solicitation or other procurement request, solicited or otherwise, confers no right to receive an award or contract, nor does it obligate the State in any manner.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.525 Rules

a) Procurement under the jurisdiction of the CPO-HE or an appointed SPO shall be conducted in accordance with the Code and this Part, except as provided in this Section.

b) If legislation or court decision invalidates any Section of this Part or requires a different interpretation, the rules will be implemented in accordance with the legislation or court decision.

c) All proposed rules will be submitted to the Procurement Policy Board (PPB) during the public comment period established under the Illinois Administrative Procedure Act [5 ILCS 100]. Rulemaking, except for emergency rulemaking, shall be scheduled to allow the PPB at least 30 days to provide comments.

d) Emergency rules will be submitted to the PPB for review and comment with as much notice as is reasonably possible. A copy of the adopted emergency rules shall be provided to the PPB. The Board shall be given opportunity to comment on rules proposed to replace the emergency rules.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.530 Policies and Procedures

a) The CPO-HE may issue policies and procedures to further implement the Code and this Part. Policies and procedures shall be maintained in a structured format. The CPO-HE shall periodically review policies and procedures and determine if any should be issued as an administrative rule.

b) The CPO-HE shall notify the PPB of changes to policies or new policies. The CPO-HE may give notice by including the PPB on standard distribution list.

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.1005 Procurement Authority

a) The CPO-HE appointed by the Executive Ethics Commission will exercise the procurement authority created by the Code for the benefit of the State of Illinois and the universities under the jurisdiction of the CPO. The Executive Ethics Commission may appoint a temporary acting CPO to act in the absence of the CPO-HE, such as during illness, vacation or other extended leave.

b) The CPO-HE's procurement authority extends to supplies, services, construction not under the jurisdiction of the Capital Development Board or the Department of Transportation, real estate leases and all other categories of need subject to the Code. The authority extends to all aspects of the procurement process, including, but not limited to: pre-solicitation activities, solicitation preparation, source selection, evaluation, award, approval or rejection of proposed contracts, dispute resolution and records subsequent to identification of need, except as otherwise provided for in the Code.

c) Any reference in the Code or this Part directing or authorizing a university to take procurement action is subject to the overall procurement authority of the CPO-HE and SPO as set forth in the Code and this Part.

d) The CPO-HE exercises procurement authority through one or more SPOs or temporary acting SPOs and university and other staff assigned to the procurement function. The CPO-HE may assign an SPO to one or more universities or may make assignments on a functional basis. The CPO-HE may appoint a temporary acting SPO with limited authority to act with an appointed SPO. In the absence of an appointed SPO, the CPO-HE may exercise the procurement authority of an SPO or may appoint a temporary acting SPO. Unless the Code or this Part prohibits a designee from performing a procurement action, the CPO-HE may delegate procurement action to an SPO or other designee. The CPO-HE may reserve certain procurement activities to the CPO-HE and reserves the right to review and modify or overturn any action of an SPO or any other designee.

e) An SPO will exercise procurement authority in accordance with direction and limitations established by the CPO-HE. SPOs have roles and responsibilities established in Section 10-10 of the Code. Each university shall recognize the SPOs' statutory roles and shall cooperate with SPOs in the conduct of their actions. The SPO will act primarily to review, authorize and approve university procurement actions. The CPO-HE will determine and identify, in writing, procurement activities that must be conducted by the CPO-HE or an SPO. Activities not reserved to the CPO-HE or SPO will be conducted by the university staff with CPO-HE/SPO oversight.

f) Each university shall determine an appropriate number of qualified staff and related resources to meet the procurement needs of the university. University staff remain university employees at all times, including while acting under authority of the CPO-HE.

g) The university is responsible for determining the need for a particular procurement. If the SPO or CPO-HE has a question regarding the need for a particular procurement, the SPO or CPO-HE may require a signed statement from a university official outside the procurement office confirming that the proposed procurement for the stated need is in the best interest of the university.

h) University procurement staff are responsible for:

ensuring that all procurement activities, including those submitted to the SPO or CPO-HE for review, authorization or approval, are in accordance with the Code, this Part, other applicable laws and rules, the policy direction of the CPO-HE and internal policies of the university; and
obtaining all State and university approvals applicable to the particular stage of the procurement process.

i) The CPO-HE and the SPO, at the direction of the CPO-HE, has the authority to review any contract or contract amendment prior to execution to ensure that applicable procurement and contracting standards were followed and approve or reject proposed contracts for a purchasing agency. [30 ILCS 500/10-10(a)]. In addition to this authority, the CPO-HE may authorize a university to enter into contracts without specific approval of the CPO-HE or SPO.

The CPO-HE shall determine in writing which contracts must be reviewed by the CPO-HE or SPO for approval or rejection prior to execution by the university. These approval authorities may be modified or revoked at any time by the CPO-HE or the SPO, when appropriate. In the absence of written direction, the university shall enter into contracts for its needs.
Any written determination regarding approval authorization by the CPO‑HE or SPO shall be maintained by the CPO-HE and distributed to the SPO, university head, university purchasing director and the State Comptroller.
Because all fiscal authority for the universities is vested in their governing boards under their organizing statutes, only those contracts signed in accordance with board of trustees procedures are valid obligations of a university. If the CPO-HE or SPO approves a proposed contract, the university must sign in order for the contract to be legally binding on the university. The university may decline to sign a contract even if approved by the CPO-HE or SPO.
If the CPO-HE or SPO approves a proposed contract for a university, in no event shall the CPO-HE or SPO have or assume any responsibility or obligation under the contract, financial or otherwise, to any party or person.

j) Procurement Compliance Monitors (PCMs)

PCMs have roles and responsibilities established in Section 10-15 of the Code. This includes overseeing and reviewing the procurement process, having access to records and systems, and attending any procurement meeting.
Each university shall recognize these statutory roles and shall cooperate with PCMs in the conduct of their actions. Cooperation includes providing notice of, and access to, procurement meetings and access to all procurement related records in whatever format they may exist, including documents, databases and systems. Failure to cooperate and resolve issues may be reported to the chief executive officer of the university and in certain cases may require reporting to the Office of the Executive Inspector General.
Should a PCM request review of a contract before final execution, the university shall not execute the contract until approved by the SPO after consultation with the PCM and the university.

k) Inquiries

Any offeror, respondent, SPO, State agency, university, subcontractor or person may contact the CPO-HE at http://www.cpohe.illinois.gov

concerning any procurement matter and obtain information concerning the procurement process or a pending procurement to meet the objectives of Section 1-5 of the Code and Section 4.5 of this Part. The CPO-HE shall take all measures, within its means and resources, in conformity with the Code and this Part, to address any inquiries to effectuate the aims of the Code and this Part. All contacts shall be placed in the procurement file and in compliance with Section 50-39 of the Code.

l) Notification

In consultation with the CPO-HE, an SPO or PCM shall advise a university in writing of any misconduct, waste or inefficiency with respect to a university procurement and give the university opportunity to correct or resolve the issue. If the university does not correct the issue, the SPO or PCM shall report the problem to the Office of the Inspector General and the CPO-HE. The Attorney General's Office shall also be notified if collusion or other anticompetitive practice is suspected.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.1010 Appointment of State Purchasing Officers (repealed)

History

Source: Repealed at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.1011 Procurement Authority of the Cpo (repealed)

History

Source: Repealed at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.1030 Other Procurement Authority of the Universities (repealed)

History

Source: Repealed at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.1060 Delegation

a) Procurement actions not reserved in writing by the CPO-HE or delegated to an SPO or other designee shall be conducted by the university.

b) The CPO-HE may delegate to any SPO or other designee or, in consultation with a university, to a university authority to conduct certain procurement actions or functions. The CPO-HE may also delegate to any SPO the CPO-HE's authority to conduct on behalf of the CPO-HE specific procurements or classes of procurements for multiple university use. An SPO may request that the CPO-HE delegate further authority to that SPO. The SPO and university delegated authority shall remain subject to the authority of the CPO-HE and SPO as applicable.

c) Any exercise of delegated authority shall be in accordance with the Code and this Part.

d) Delegations shall be in writing and shall specify:

the action or function authorized or not authorized;
any limits or restrictions on the exercise of the delegated authority;
whether the authority may be further delegated;
the duration of the delegation; and
any reporting requirements.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.1080 Illinois Mathematics and Science Academy

The Illinois Mathematics and Science Academy and its SPO shall procure supplies and services for the operation of the Academy through the CPO-HE. All such procurements for the Academy shall be made in accordance with the requirements of this Part.

History

Source: Former Section 4.1080 repealed at 36 Ill. Reg. 10951, effective August 6, 2012; new Section 4.1080 added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.1501 Illinois Procurement Bulletin - Higher Education

a) The Illinois Procurement Bulletin consists of four volumes, one for each of the Chief Procurement Officers designated in the Code. Each volume will contain information relating to procurements under the authority of the appropriate CPO. In relation to the CPO-HE volume, the official title of the volume is The Illinois Procurement Bulletin/Public Institutions for Higher Education. In common use, this Bulletin may be referred to as the Public Higher Education Bulletin or as otherwise designated by the CPO-HE. References in this Part to Bulletin mean the Higher Education volume unless the context indicates a different meaning.

b) The CPO-HE shall consult with the universities regarding the Bulletin as necessary, but the CPO-HE shall have all rights in and to his or her volume of the Bulletin and shall publish this volume of the Bulletin. The CPO-HE shall determine the content, design, form, function, organization and structure of this volume of the Illinois Procurement Bulletin and shall make revisions as necessary or desirable. To the extent the universities provide funding for the Bulletin, any decisions regarding the Bulletin may not exceed these funds. University personnel assigned to work on the Bulletin remain employees of the university and the CPO-HE will exercise no personnel authority regarding these employees.

c) The CPO-HE may, through agreement with one or more other Chief Procurement Officers, publish the Higher Education volume of the Bulletin jointly with one or more other volumes of the Illinois Procurement Bulletin, in accordance with the Intergovernmental Cooperation Act [5 ILCS 220].

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.1510 Publication of Higher Education Bulletin

The CPO-HE will publish the Bulletin in electronic form and may update the Bulletin as needed. A link to the Bulletin can be found on the CPO-HE maintained websites at http://www.procure.stateuniv.state.il.us and http://www.cpohe.illinois.gov.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.1515 Registration

Prospective vendors and other interested parties must complete the Bulletin registration screens to download solicitations and other procurement-related documents and to receive email notices, including notices of award.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.1525 Bulletin Content

a) The Bulletin will contain all content required by the Code. The Bulletin may include reference information of general interest (e.g., how to access the other volumes of the Illinois Procurement Bulletin, notice of new legislation, announcements and determinations) and may serve as the CPO-HE's website. The CPO-HE shall determine whether the CPO-HE, SPO or a designee will publish notices to the Bulletin. This determination shall be based upon considerations such as operational efficiencies, staff resources, system capabilities, workload and timing considerations.

b) Notice of each procurement shall be published in the Illinois Procurement Bulletin for at least 14 days and contain at least the following information, as applicable:

the name of the purchasing university;
a brief description of the supplies or services sought in the particular solicitation;
a procurement reference number, if used;
the date the procurement is first offered (procurements that require notice shall not be distributed to vendors prior to the date the notice is first published in the Bulletin);
the date, time and location for making submissions;
the method of source selection;
the name of the State Purchasing Officer in charge and the name of the university person on the purchasing staff assigned to the procurement (university buyer);
instructions on how to obtain a comprehensive purchase description and any disclosure and contract forms;
encouragement to prospective vendors to hire qualified:

A) Veterans;

B) Illinois minorities, women, persons with disabilities; and

C) Residents discharged from any Illinois adult correctional center.

c) Notice of each contract let or awarded that was subject of a notice in subsection (b) shall be placed in the Bulletin and shall be immediately issued electronically to those bidders or offerors submitting responses to the solicitation. Bidders and offerors must register (see Section 4.1515) and sign up for email notices. Should the Bulletin fail to send notice to bidders or offerors submitting responses to the solicitation, the time for filing a bid protest will be extended up to 7 days.

d) The SPO shall publish the notice of award or notice of intent to award to the Bulletin for a minimum of 14 days prior to execution of the contract, unless a shorter time is authorized by the Code or this Part. This notice shall contain at least the following information:

all the information published in subsection (b)(1) through (7);
the name of each vendor who submitted a response and the vendor selected for award;
the contract price for the vendor selected for award;
the total number of vendors who responded;
the number of unsuccessful vendors;
for each vendor who submitted a response, including the awarded vendor:

A) BEP Firms

i) the name or names of the certified Business Enterprise Program (BEP) firms identified in the vendor's submitted utilization plan;

ii) the amount and percentage of business proposed to be conducted by businesses owned by BEP vendors, as reflected in each utilization plan;

B) VBP Firms

i) the name or names of the certified Veterans Business Program (VBP) firms identified in the vendor's submitted utilization plan;

ii) the amount and percentage of business proposed to be conducted by businesses owned by VBP vendors, as reflected in each utilization plan;

iii) the total number of VBP vendors that submitted responses; and

the information recorded at the solicitation opening, including bid amount, and any other disclosures required to be published in the Bulletin.

e) If a university wishes to award to other than the lowest responsive and responsible vendor in accordance with Sections 20-10(g) and 35-30(f) of the Code, an SPO must make a written determination that awarding to the lowest responsive and responsible vendor is not in the best interest of the university and must post in the Bulletin a written explanation with the notice of award. The written explanation must also be filed by the SPO with the Legislative Audit Commission and must include:

a description of the university's needs;
a determination that the anticipated cost will be fair and reasonable;
a listing of all responsible and responsive bidders; and
the name of the bidder selected, the total contract price, and the reasons for selecting that bidder.

f) Notice of each contract renewal shall be approved by an SPO and posted in the Bulletin within 14 days after the determination by the university to execute a renewal of the contract. The date of the determination to execute a renewal shall be the date of the last approval required by the university to move forward with the renewal. Each university shall identify the renewal approval process, including the requirements contained in Section 8i of the Business Enterprise for Minorities, Women and Persons with Disabilities Act [30 ILCS 578], and shall ensure the renewal notice contains the required information and is posted to the Bulletin within the prescribed time. The notice shall include all information required by subsection (d) or shall reference this information electronically. The notice may include attachment of or reference to the original Bulletin notice.

g) Notice of renegotiated contracts and change orders, or series of change orders, shall be conducted and published in accordance with Section 4.2067.

h) The following information regarding emergency procurements shall be published in the Bulletin within 5 days after emergency contract award:

name of the procuring university;
name of the vendor selected for award;
brief description of what services or supplies the vendor intends to provide;
total cost (if only an estimate is known, it shall be published, but a subsequent notice repeating all required information shall be published when the final amount is known);
reasons for using the emergency method of source selection;
name of the CPO, SPO and name of the university buyer in charge of the procurement;
name of the university person who authorized the emergency contract action; and
statement of emergency procurement, if available, and, if not available, to be published as an amendment to the notice within 10 days after the emergency procurement.

i) In addition to the requirements of subsection (h), notice of hearing to extend an emergency contract must be posted in the Bulletin no later than 14 days prior to the hearing. A completed emergency extension justification form as prescribed by the CPO-HE shall be published as part of the notice of hearing.

j) The following information regarding intent to enter a sole source contract shall be published in the Bulletin at least 14 days prior to the required public hearing:

name of the purchasing university;
name of the intended sole source vendor;
a description of what services or supplies the vendor intends to provide;
name of the SPO and university buyer in charge of the procurement;
the date, time and location of the scheduled public hearing, with an explanation that the hearing will be cancelled if no person registers to attend; and
a completed sole source justification form as prescribed by the PPB.

k) Each university shall post in the Bulletin a copy of its annual report of utilization of businesses owned by minorities, women, and persons with disabilities. Posting is due within 10 days after the university submits its report to the Business Enterprise Council in accordance with Section 6(c) of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act.

l) The CPO-HE shall allow the universities to post in the Bulletin, at least annually, the reports of the granting of university concession required by Section 53-25 of the Code.

m) Notice of other matters shall be published as required by law or at the direction of the CPO-HE.

n) The CPO-HE may allow another CPO or another governmental entity to publish procurement related notices and other matters of public interest to the Bulletin.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.1535 Vendor Portal

a) In consultation with the PPB and universities, the CPO-HE may establish a vendor portal, use another CPO's vendor portal, or jointly operate a vendor portal with other CPOs if a single portal better serves the needs of State agencies and the vendor community. A vendor portal shall allow potential vendors to:

Provide certifications, disclosures, registrations and other documentation needed to do business with the State in advance of a particular procurement;
Submit the vendor's registration number, with a confirmation that the vendor portal information is accurate and current, as part of the vendor's response to a competitive solicitation or other contracting process, and with the understanding that the universities will be relying on the information when evaluating solicitation responses and awarding contracts.

b) The CPO-HE may accept the registration number of a vendor from another CPO's vendor portal provided that the vendor certifies that vendor portal information is current.

c) Once registered in the vendor portal, vendors must reregister annually to continue utilizing their vendor portal number in lieu of paper and this update satisfies the annual recertification for contracts and subcontracts of more than one year in duration or for any renewal term required by Section 50-2 of the Code.

d) A vendor is not required to register in the vendor portal as a condition of conducting business with any university.

History

Source: Amended at 50 Ill. Reg. ______, effective ____________

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.1545 Supplemental Notice (repealed)

History

Source: Repealed at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.1550 Error in Notice

a) When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin within a reasonable time after the original publication.

b) The SPO must approve any correction that results in a change of procurement method or a material change in the requirements set forth in a solicitation. These corrections may require extension of the time to respond to the original solicitation or cancellation of the solicitation in appropriate circumstances.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.1560 Alternate and Supplemental Notice

a) If the electronic Bulletin cannot be published, the CPO-HE may publish notice in one of the other CPO's Procurement Bulletins on an interim basis. If no electronic version of the Bulletin can be published, the CPO-HE may designate its website as its volume of the Bulletin. If necessary, the CPO-HE may designate the Official State Newspaper or other newspaper of general circulation as its volume of the Bulletin. All newspaper notices will be published in the Bulletin when it becomes available, but that publication will not extend any procurement-related timeframes.

b) Publication in the Bulletin may be supplemented by publication elsewhere at the discretion of the CPO-HE or SPO. Examples include publication in:

the Official State Newspaper;
a newspaper of general circulation;
a newspaper of local circulation in the area pertinent to the procurement;
industry media; or
agency website.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.1580 Direct Solicitation

In addition to giving notice in the Bulletin, the SPO or university staff authorized by the SPO may directly contact prospective vendors by providing copies of solicitations or other procurement information. Direct solicitation may be oral or in writing, but all vendors shall receive the same information as provided in the Bulletin. No direct solicitation shall be made prior to publication of any required notice in the Bulletin.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.1585 Notice Time

Each solicitation shall be published in the Bulletin at least 14 days prior to the date set for opening, unless a shorter time is authorized by the Code or this Part.

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.1595 Availability of Solicitation Document

Procurements that require notice shall not be distributed to vendors prior to publication of the notice in the Bulletin. A copy of the solicitation shall be made available for public inspection at the university procurement office. This copy shall be available as of the date and time the solicitation is published in the Bulletin.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.2005 General Provisions

a) Method of Source Selection. Unless otherwise authorized by law, all State contracts shall be awarded by competitive sealed bidding, in accordance with Section 20-10 of the Code, except as provided elsewhere in the Code. The CPO‑HE may determine the method of solicitation and contract for all procurements pursuant to the Code. The CPO-HE shall have the sole authority to develop and distribute uniform documents for the solicitation, review and acceptance of all bids, offers and responses and the award of contracts. [30 ILCS 500/20-5, 20-155]

b) Solicitation Response

A solicitation may contain forms that must be returned or may require compliance in a prescribed format. If a form or format is prescribed, prospective vendors shall submit those forms as instructed.

All bids/offers received shall be date and time-stamped and stored in a secure manner (e.g., locked file cabinet, safe, locked room, secure electronic portal, or other secure location) by the person responsible for receiving bids and offers.
No information regarding bids/offers received shall be disclosed to anyone prior to opening, except as authorized by the SPO. The SPO, in consultation with the university purchasing director, shall determine who is authorized to have information prior to opening. The name and title of the person authorized to have this information and the name and title of the person disclosing the information shall be documented in the procurement file. University personnel may confirm receipt of the bid or offer to the bidder or offeror, but no information is to be given otherwise.
If a bid or offer is opened for identification purposes or in error, the procurement file shall include a signed statement explaining the reason for the mistake or error, including the name of every person involved. The bid or offer shall be re-sealed until the time set for the opening of the solicitation.

c) Late Bids or Proposals, Late Withdrawals and Late Modifications

Any bid or proposal (include any modification, withdrawal or other procurement-related submission) received after the time and date for receipt, or at other than the specified location, is late. A submission that is delivered to the wrong location but is subsequently delivered to the correct location by the date and time specified shall be considered. State employees shall not be responsible for ensuring subsequent delivery of misdelivered items. Delivery at the specified location and time shall be the sole responsibility of the bidder or offeror.
No late submission will be considered unless the SPO determines it would have been timely but for the action or inaction of State personnel directly serving the procurement activity (e.g., providing the wrong address). It is the responsibility of the bidder or offeror to ensure delivery at the time and to the place specified. Vendors submitting a late response will be notified and given the opportunity to retrieve the submission at their cost. Late submissions not returned to the vendor will be destroyed after all related procurement activity is complete and the resulting contract has been executed.
Records shall be made and kept for each late bid or proposal, late modification, or late withdrawal.
Any other submission that has a time or date deadline shall be treated in the same manner as a late bid or late proposal.

d) Solicitation Modifications

The SPO may, prior to the date or time for submitting a bid or proposal, approve an extension of the date or time for the convenience of the university.
The SPO may approve modification to the bid or proposal for reasons other than extending the date or time.
If notice cannot be made at least 72 hours in advance of the time the responses are due, the SPO shall approve an extension of time to respond for a reasonable period of time or shall authorize cancellation of the solicitation. The SPO, after consultation with the university, shall determine which action best meets the needs and interests of the university and best promises transparency, competitiveness and other policies of the Code.
All notices under this subsection (d) shall be published in the Bulletin.

e) Bid/Proposal Firm Time

Unless otherwise provided in the solicitation, the vendor's bid/proposal must be kept firm for at least 30 days after the opening date.
After opening bids or proposals, the SPO may request bidders or offerors to extend the time during which the university may accept the bids or proposals, provided that, with regard to bids, no other change is permitted. This extension does not provide an opportunity for others to submit bids or proposals.

f) Electronic and Fax Submissions and Communications

Solicitation responses, notices and other official procurement-related communications may be made in electronic form if stated in the solicitation. The CPO-HE shall establish or approve the use and method of electronic submission. Submissions that must be secure will be opened at the designated date, time and place only by an authorized person.
Procurement-related communications that reflect final agreements or settlements in relation to protests, suspensions, debarments or contract matters must be signed by submitting a scanned copy of an original signature or by digital signature using an approved security process. Electronic communications must meet the same substantive requirements as paper communications except as allowed to reflect the different means of communication.
Electronic signatures must meet the minimum security requirements established by the Department of Central Management Services [5 ILCS 175/25-101(c)] and the accompanying regulations (14 Ill. Adm. Code 105).
Fax or email submissions are acceptable for small purchases.

g) Only One Bid or Proposal Received

If only one bid or proposal is received, the SPO may award to the single bidder or offeror if the SPO finds:

A) the price submitted is fair and reasonable, and other prospective bidders or offerors had reasonable opportunity to respond; or

B) there is not adequate time for resolicitation.

Otherwise the SPO may cancel the procurement.

h) Alternate or Multiple Bids or Proposals

Alternate bids or proposals may be accepted if permitted by the solicitation and in accordance with instructions in the solicitation.
Multiple bids or proposals may be accepted if permitted by the solicitation and submitted in accordance with instructions in the solicitation.

i) Multiple Items

j) All or None Bids or Proposals

All or none bids or proposals may be accepted if the evaluation shows an all or none award to be the lowest cost or best value of those submitted.

k) Conditioning Bids or Proposals Upon Other Awards

Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall be rejected.

l) Unsolicited Bids or Offers

An award may not be made based on an unsolicited offer in place of the notice and competition requirements of the Code and this Part.

m) Clarification of Bids and Proposals

The university may request that a vendor clarify its bid or proposal as a part of the evaluation process. A copy of the clarification request must be provided to the SPO. A clarification is not an opportunity to make material changes or for submission of best and final offers as authorized elsewhere in this Part.

n) Assignment, Novation or Change of Name

Assignment and Novation. All assignments and novations must be in writing. No university contract may be assigned or novation entered into without the prior written consent of the CPO-HE or SPO, provided, however, that a vendor may assign money receivable under a contract after due notice to the State. The assignee or transferee, except in the case of assignment of payment only, must meet all requirements for contracting with the university. Any purported assignment or novation without prior written consent shall be null and void.
Recognition of a Successor in Interest; Novation. When in the best interest of the university, a successor in interest may be recognized in a written novation agreement in which the transferor and the transferee agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the university;

C) the transferor waives all rights under the contract as against the university, and it is understood that the university does not waive any applicable right or remedy against the transferor unless expressly stated in the Novation Agreement; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the university, furnish a satisfactory performance bond.

Change of Name. A vendor may submit to the university a written request to change the name in which it holds a contract with the university. The name change shall not alter the parties, any of the terms and conditions of the contract or the obligations of the vendor.

o) Contracting for Installment Purchase Payments, Including Interest

p) Incorporation by Reference

A solicitation may incorporate documents by reference provided that the solicitation specifies where the documents can be obtained.

q) Use of Source Selection Method that is Not Required

For procurements that are subject to the Procurement Code, if a university uses a method of source selection that it is not, by law, required to use (e.g., use of a competitive sealed bid for a small purchase), the university is bound to compliance with the Code and this Part governing the method of source selection used.

r) Vendor Signature

A bid or proposal submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the SPO within the time specified by the SPO.

s) Stringing

Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited. Periodic purchases of similar supplies from several different vendors to maintain inventory is not stringing unless the purchases are planned to avoid use of competitive procedures. When the university or SPO identifies three or more purchases of the same item or similar items with a total value exceeding the small purchase limit during any12 month period, the university purchasing director and the SPO shall jointly determine whether the circumstances, including, but not limited to, frequency of purchases, cost of individual purchases and future needs, warrant issuing a competitive or other consolidated procurement.

t) Confidential Data

The vendor must identify the basis of the claim of exemption from FOIA and show how that basis applies to the request for exemption. Information submitted without a claim of exemption from FOIA may be disclosed to the public without notice or permission.
Information submitted with a claim of confidentiality or exemption from FOIA may still be disclosed to the public if determined under applicable law that the claim or exemption does not meet the requirements for withholding the information under FOIA.

u) Notice of Subcontractor

Any contract entered into under this Part shall state whether the services of a subcontractor will be used. The contract shall include the names and addresses of all known subcontractors with subcontracts with an annual value of more than $50,000, the general type of work to be performed by each subcontractor, and the expected amount of money each will receive under the contract. [30 ILCS 500/20-120(a)] A subcontract shall include all certifications required by Article 50 of the Code.
If, at any time during the term of the contract, a contractor desires to add or change any subcontractors with subcontracts with an annual value of more than $50,000, the contractor shall promptly notify the university, in writing, of the names and addresses of the proposed subcontractors, the general type of work to be performed by the proposed subcontractor, and the expected amount of money each new or replaced subcontractor will receive under the contract.
No contractor shall change a subcontractor listed in the original bid or proposal, except for documented good cause. Any substitute subcontractor must meet all requirements of the Code applicable to subcontractors.

A) Good cause may include, but is not limited to:

i) failure of the subcontractor to execute a written contract after a reasonable period of time after the written contract is presented to the subcontractor by the contractor;

ii) bankruptcy of the subcontractor;

iii) death or disability of the subcontractor, if the subcontractor is an individual;

iv) dissolution of the subcontractor, if the subcontractor is a corporation or partnership;

v) failure of the subcontractor to meet bond requirements as specified in the solicitation;

vi) subcontractor becomes ineligible to perform on the subcontract because the subcontractor is suspended, debarred or otherwise ineligible to perform;

vii) a series of failures by the subcontractor to perform in accordance with the specifications, terms and conditions of its subcontract;

viii) failure of the subcontractor to comply with a requirement of law applicable to the subcontractor; or

ix) failure or refusal of the subcontractor to perform the subcontract.

B) A request of a contractor for a substitution of a listed subcontractor shall be submitted in writing to the university and shall include the reasons for the request. Consent of the university for a substitution shall be made in writing and be included in the procurement file.

C) Any substitution of an approved BEP subcontractor must be approved in accordance with 30 ILCS 575 and 44 Ill. Adm. Code 10 as it applies to universities.

D) Failure of a contractor to comply with this Section may result in cancellation of its contract and be grounds for suspension or debarment.

v) Pre-Solicitation Assistance

For purposes of this subsection (v), "business" includes all individuals with whom a business is affiliated, including, but not limited to, any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder of a business. [30 ILCS 500/50-10.5(e)]
Non-Prohibited Acts. This Section does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

A) Initiated a communication with an employee of the university to provide general information about products, services or industry best practices.

B) Responded to a communication initiated by an employee of the university for the purposes of providing information to evaluate new products, trends, services or technologies.

C) Provided written material to a university employee obtained from public sources, such as through an internet search, or literature packets obtained in conjunction with an event such as a trade show.

D) Provided, at the request of the university, general marketing material or makes a general sales presentation to show the person's qualifications or product capabilities. Material may be personalized for the procuring agency provided any personalization is obtained from publicly available sources.

E) Provided technology, supplies or services demonstrated to the university that represent industry trends and innovation and is not specifically tailored to meet the university's needs.

F) Asked for clarification on a published solicitation provided:

i) the response did not provide a competitive advantage to the person or business who asked for clarification; and

ii) the question and answer were published to the Bulletin as an addendum to the solicitation.

G) Provided market costs or production time to a person performing construction-related services to help determine the estimated costs and time to complete a construction project.

Prohibited Acts

A) Specifications. With the exception of standard specifications that a vendor makes available to any potential purchaser, a person or business may not submit specifications to a university for a particular transaction unless requested by a university employee. An SPO or person designated by the SPO must approve an employee's request for the specifications.

B) Assistance to University Employees. A person or business is prohibited from bidding on a solicitation and from having a contract or subcontract if the person or business assisted an employee of the university who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a contract. Assistance to a university employee may include any of the following:

i) Drafting (writes or assists the university with writing all or part of the procurement document);

ii) Reviewing (reads the document or comments on the procurement document or signified approval or disapproval);

iii) Directing (giving instructions or commands or in supervising or overseeing the preparation of the procurement document);

iv) Preparing (any activity relating to organizing or distributing the documents, including through the Procurement Bulletin); or

v) Providing similar assistance (e.g., conducting research or providing any advice used in drafting, reviewing, directing or preparing procurement documents).

C) A person (and its affiliated or related entities) that contracts with a university to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement.

Exceptions.

A) Any person or business who responds to an advertised request for information or other publicly available opportunity to provide information related to the procurement need or to review drafts of all or part of proposed procurement documents shall not be disqualified by virtue of responding to the State's publicly advertised request.

B) The CPO-HE may permit a university to accept a bid or enter into a contract or subcontract with a business that assisted a university in determining need or that assisted in reviewing, drafting or preparing documents related to a bid or contract, provided:

i) The bid or contract is essential to research administered by the university;

ii) The CPO-HE determines it is in the best interest of the university to accept the bid or contract; and

iii) Written approval is provided by the Executive Ethics Commission.

w) Pre-Submission Conference

A pre-submission conference may be conducted to enhance potential vendors' understanding of the procurement requirements. The pre-submission conference shall be announced as part of the solicitation notice. The conference may be designated as "attendance mandatory" or "attendance optional". For mandatory pre-submission conferences, a university shall document attendance on a form prescribed by the CPO-HE, which shall include the name of the attendee, the business represented, and the attendee's position within the business.
The conference shall be held long enough after the solicitation has been issued to allow potential vendors to become familiar with it, and sufficiently before solicitation opening to allow consideration by vendors of conference results in preparing their responses.
Supporting documentation of the conference shall be supplied to all prospective vendors known to have received a solicitation by posting the information on the Bulletin.
Nothing stated at the pre-submission conference shall change the solicitation unless a change is made by written modification to the solicitation. Amendments shall be supplied to all those prospective vendors through posting on the Bulletin.

x) Federally Funded Purchases

For purchases funded in whole or in part by United States Government funds, the solicitation will identify the federal agency providing the funds, the name of the fund and contact information where interested parties can obtain requirements for contracting in relation to those funds.

y) Evaluation Committee

Evaluation committee members shall be determined by the university, tailored to the particular solicitation, and include, as appropriate, technical or other personnel with expertise to ensure a comprehensive evaluation of offers.
Evaluation committee members and any technical or other personnel with expertise assisting with the evaluation must not have any conflicts of interest or apparent conflicts of interest and must commit to the time necessary to complete all evaluations and attend any necessary evaluation meetings.
Scoring and recommendation of any committee member who does not complete the entire evaluation and scoring will not be considered in determining the final scores.
After consultation with the university purchasing director, evaluation committee members may be removed by the SPO for failure to comply with instructions or directions or to ensure the integrity of the procurement. The SPO shall state in writing the reasons for removing a committee member.
The SPO has the right to attend all evaluation meetings.

z) Confidentiality and Conflicts

To protect the integrity of the procurement process, persons having access to confidential procurement information or participating in the procurement process may be required to execute a confidentiality and conflict of interest form as prescribed by the CPO-HE.
Bids and offers and any modifications shall be opened in a manner to avoid disclosing contents to competitors. Until an award recommendation is made, no university personnel or contractual agents, other than the evaluation committee and those assigned to the procurement, may review the bids or offers, except with justification from the purchasing director and approved by the SPO.
While the procurement is on-going, a university shall not disclose any information related to the procurement to any other bidder, offeror, or any other person not assigned to the procurement, other than information that was recorded, read and made publicly available at the opening of the bids or offers. After completion of the evaluation and award recommendation, the university may conduct discussions with management and the board of trustees if necessary to obtain approval for award prior to publishing the award in the Bulletin.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2010 Competitive Sealed Bidding

a) Application

Competitive sealed bidding, also referred to as Invitation for Bids, is the required method of source selection except as allowed by the Code and this Part. The provisions of this Section apply to each procurement required to be conducted by competitive sealed bidding.

b) Invitation for Bids

Use. An Invitation for Bids is used to initiate a competitive sealed bid procurement.
Content. An IFB shall include, at a minimum, the following:

A) instructions and information to potential bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the location to which bids are to be delivered and the maximum time for bid acceptance by the university;

B) the purchase description, evaluation factors, delivery or performance schedule and such inspection and acceptance requirements as are not included in the purchase description;

C) the contract terms and conditions;

D) State mandated certifications, disclosures and registration requirements; and

E) A form or format that will specify or organize the manner of price submission.

Delivery-Related Costs. Unless otherwise provided in the solicitation, the bid price includes transportation, transit insurance, delivery, installation and any other costs.

c) Amendments to Invitations for Bids

Form. Amendments to IFBs shall be clearly identified and shall reference the portion of the IFB they amend.
Distribution. Amendments shall be made available by posting on the Bulletin.
Timeliness. Amendments shall be made available at least 72 hours prior to the date or time for submitting a bid to allow prospective bidders to consider them in preparing their bids. If notice cannot be made at least 72 hours in advance of the time responses are due, the solicitation shall be cancelled and reissued or the SPO shall extend the time to respond for a reasonable period of time. The SPO, after consultation with the university, shall determine which action best meets the needs and interests of the university and best promotes transparency, competitiveness and other policies of the Code.

d) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received at the location designated in the IFB prior to the time and date set for bid opening.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

e) Opening and Recording of Bids

Bids and modifications shall be opened publicly at the time, date and place designated in the IFB in the presence of a State witness or through an electronic procurement system approved by the CPO-HE.
The person opening bids shall not serve as witness. The name of the person opening the bids, the name of the person serving as the State witness, the name of each bidder, the bid price, and such other information determined by the CPO-HE or SPO shall be recorded on a form prescribed by the CPO-HE, read aloud, signed by the person opening the bids and the State witness, and otherwise made available through an electronic procurement system approved by the CPO-HE. The person opening the bid and the State witness may sign electronically.

f) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the IFB, except as permitted in the Code and this Part. The IFB shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder. No bid shall be evaluated on the basis of any requirements or criteria that are not disclosed in the IFB.
Responsibility. Responsibility of prospective vendors is covered by Section 4.2046 (Responsibility).
Responsiveness. A bid must conform in all material respects to the IFB.

i) inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

ii) examination of such elements as appearance, finish, taste or feel;

iii) other examinations to determine whether the product or service conforms to any other purchase description requirements.

B) The acceptability evaluation is not conducted for the purpose or determining whether one bidder's product or service capability is superior to another, but only to determine that a bidder's offering is acceptable as set forth in the IFB. Any bidder's offering that does not meet the acceptability requirements shall be rejected.

Price

A) Following determination of product or service acceptability as set forth in this subsection (f), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the IFB. Only objectively measurable criteria that are set forth in the IFB shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost, administrative cost and ownership or life-cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but, to the extent possible, the evaluation factors shall be reasonable estimates based upon information the State has available concerning future use and shall treat all bids equitably.

B) The IFB shall identify in the solicitation what parts or features of the work are essential and what options may be included in the project. An option is a right to purchase additional supplies or services identified in the solicitation and directly relates to additional features or services of the underlying supply or service. All options must be clearly identified in the solicitation as optional work.

C) The solicitation shall identify how the university will evaluate bids to determine the lowest cost for award purposes by identifying whether options will or will not be included in the price evaluation.

D) The State expects prices for the required and optional supplies and services to be the lowest competitive market prices available for a customer of like type and of like circumstance. If the university solicits required and optional supplies or services, but awards based on the required supplies and services, the university may reject any response to the solicitation if the required or optional prices are materially unbalanced in relation to each other. For example, if a vendor submits an artificially low price for the required supplies and services but has submitted an artificially high price for the options, the prices are presumed to be unbalanced. Unbalanced prices are not conducive to competitive comparison and may not be in the best interests of the State.

E) Evaluation of options does not obligate the university to exercise those options. If a university adds, during the contract term or renewal, options not accepted at the time of contract award, a change order shall be executed based on the price provided in the contract. Notice of the exercise of the options shall be published to the Bulletin 14 days in advance of exercise of the options.

F) Pricing for any renewal terms identified in the solicitation shall be applied in determining the lowest cost to the university. A renewal term is not an option.

G) Negotiations. Negotiations are permitted with the lowest responsible bidder to obtain a reduction in the price of the bid.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.2012 Multi-Step Sealed Bidding

a) Definition

Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the State, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered.

b) Conditions for Use

The multi-step sealed bidding method may be used when it is determined in writing by the SPO that it is not practical to prepare initially a definitive purchase description that will be suitable to permit an award based on price. Multi-step sealed bidding may be used when it is considered desirable:

to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and
to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, when appropriate, obtain supplemental information, permit revisions of technical offers, or amend the purchase description.

c) Pre-Submission Conference in Multi-Step Sealed Bidding

Prior to the submission or evaluation of unpriced technical offers, a pre-submission conference as contemplated by Section 4.2005(w) (Pre-Submission Conference) may be conducted by the SPO or designee.

d) Procedure for Phase One of Multi-Step Sealed Bidding

Form. Multi-step sealed bidding shall be initiated by the issuance of an Invitation for Bids in the form required by Section 4.2010 (Competitive Sealed Bidding), except as otherwise provided in this subsection (d). In addition to the requirements set forth in Section 4.2010, the multi-step IFB shall state:

A) that it is a multi-step sealed bid procurement, that only unpriced technical offers are requested, and that priced bids will be considered only in the second phase and only from those bidders whose unpriced technical offers are found acceptable in the first phase;

B) the criteria to be used in the evaluation of the unpriced technical offers;

C) that the SPO or designee may conduct oral or written discussions of the unpriced technical offers; and

D) that the item being procured shall be furnished generally in accordance with the bidder's technical offer as found to be finally acceptable and shall meet the requirements of the IFB.

Amendments to the IFB. After receipt of unpriced technical offers, amendments to the IFB shall be distributed only to bidders who submitted unpriced technical offers, and those bidders shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the SPO, a contemplated amendment will significantly change the nature of the procurement, the IFB may be canceled in accordance with Section 4.2040 (Cancellation of Solicitation; Rejection of Bids or Proposals) and a new IFB issued.
Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers submitted by bidders shall be opened in the presence of at least one State witness or through an electronic procurement system approved by the CPO-HE.
Evaluation of Unpriced Technical Offers. Unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the IFB.
Unacceptable Unpriced Technical Offer. When the SPO determines a bidder's unpriced technical offer does not meet criteria, the offer shall be rejected.
Discussions. The university, in consultation with the SPO, may conduct discussions with a bidder to determine in greater detail the bidder qualifications and to explore with the bidder its ability to provide the specific supply or service and the bidder proposed method of performance. Each bidder shall be given fair opportunity to make revisions authorized as a result of discussions.

e) Procedure for Phase Two

Initiation. Upon the completion of phase one, the SPO or designee shall either:

A) open priced bids submitted in phase one (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; or

B) if priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

Conduct. Phase two shall be conducted as any other competitive sealed bid procurement except that only price and related factors are evaluated.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2013 Reverse Auctions

a) CPO-HE Authorization

A university may procure supplies or services (other than for professional and artistic services, telecommunications services, communication services, information services, and construction projects, including design professional services) through means of a reverse auction if the CPO-HE has made a determination that use of a reverse auction is in the best interests of the State. The CPO-HE shall publish in the Bulletin that bids will be received in an electronic auction manner as part of the notice of IFB.

b) Reverse Auction Process

The CPO-HE or designee shall conduct a reverse auction through a two-step IFB process consisting of bid prequalification and price submission.

Prequalification

A) An invitation to prequalify shall be issued requesting the submission of information addressing vendor qualifications and responsibility; addressing vendor specifications and/or samples; confirming acceptance of auction procedures; and requiring agreement to accept a contract using State contract terms and conditions if selected for award in the price only part of the process. No pricing information shall be submitted or considered in the prequalification step of the process.

B) The prequalification bids shall not be opened publicly, but the opening shall be recorded and witnessed by a State witness or through an electronic procurement system approved by the CPO-HE. Prequalification information will be evaluated on a pass/fail basis and vendors will be notified directly as to whether they met or did not meet the prequalification criteria.

Price

B) Prices shall be submitted electronically. The CPO-HE or designee shall cause the prices to be displayed as submitted, but the prices as displayed will not identify the name of the vendor. Vendors may reduce their price at any time during the active period of the auction.

C) When the low price is substantially lower than other prices submitted, the CPO-HE or designee may request that the bidder confirm the price and, if an error has occurred, may allow withdrawal in accordance with the Code and this Part.

c) Technical Difficulties

The auction time may be extended or rescheduled by the CPO-HE or designee if technical difficulties at the State site do not allow the auction to be conducted as intended. Participants will be notified of an extension or a rescheduling.
If technical difficulties occur at a vendor site such that the vendor cannot electronically submit a price, the CPO-HE or designee may accept a fax and will then enter the price for the vendor. Faxed prices will not be accepted later than 5 minutes before the originally scheduled end of the auction or if the faxed prices are higher than the then-existing low price.

d) Reverse Auction Training

The CPO-HE or designee may provide instructions or training to prequalified vendors regarding auction procedures and technology.

e) Disclosure of Reverse Auction Information

After the end of the reverse auction, the names of those who participated in either step of the process and the final price submitted by each participant shall be published to the Bulletin.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2015 Competitive Sealed Proposals

a) Competitive Sealed Proposals may be used whenever permitted by the Code and as described in this Part.

b) The Competitive Sealed Proposal method of source selection may be used to procure the following categories. Note that the following services, if they are professional and artistic, must be procured in accordance with Section 4.2035.

electronic data processing equipment, software and services;
telecommunications equipment, software and services;
consulting services;
employee benefits and management of those benefits; and
insurance and banking services.

c) Competitive Sealed Proposals may be used on a case-by-case basis to procure other needs when it is determined in writing by the SPO that competitive sealed bidding is either not practicable or advantageous.

d) The Competitive Sealed Proposal method differs from competitive sealed bidding in two ways: it permits discussions with competing offerors and changes in their proposals, including price and it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract. Factors to be considered in determining whether competitive sealed bidding is either not practical or advantageous include:

When evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, when the types of supplies or services may require the use of comparative, judgmental evaluations to evaluate them adequately, or when the type of need to be satisfied involves weighing aesthetic values to the extent that price is a secondary consideration;
whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;
whether offerors may need to be afforded the opportunity to revise their proposals, including price;
whether award may need to be based upon a comparative evaluation, as stated in the Request for Proposals, of differing price, quality and contractual factors in order to determine the most advantageous offering to the State. Quality factors include technical and performance capability and the content of the technical proposal;
whether the primary consideration in determining award may not be price; and
if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State.

e) Content of the Request for Proposals

The RFP shall be prepared in accordance with Section 4.2010 (Competitive Sealed Bidding), provided that it shall also include:

a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award;
a statement of when and how price should be submitted.

A) The RFP shall identify in the solicitation what parts or features of the work are essential and what options may be included in the project. An option is a right to purchase additional supplies or services identified in the solicitation and directly relates to additional features or services of the underlying supply or service. All options must be clearly identified in the solicitation as optional work.

B) The solicitation shall identify how the university will evaluate offers to determine the most advantageous proposal for award purposes by identifying whether options will or will not be included in the evaluation.

C) The State expects prices for the required and optional supplies and services to be the lowest competitive market prices available for a customer of like type and of like circumstance. If the university solicits required and optional supplies or services, but awards based on the required supplies and services, the university may reject any response to the solicitation if the required or optional prices are materially unbalanced in relation to each other. For example, if a vendor submits an artificially low price for the required supplies and services but has submitted an artificially high price for the options, the prices are presumed to be unbalanced. Unbalanced prices are not conducive to competitive comparison and may not be in the best interests of the State.

D) Evaluation of options does not obligate the university to exercise those options. If the university adds options not accepted at the time of contract award, a change order shall be executed based on the price provided in the contract. Notice of the exercise of the options shall be published to the Bulletin 14 days in advance of exercise of the options.

E) Pricing for any renewal terms identified in the solicitation shall be applied in determining the price. A renewal term is not an option; and

a statement that revisions may be requested, after discussions, for the purpose of obtaining best and final offers.

f) Receipt and Registration of Proposals

Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP in the presence of a State witness, or through an electronic procurement system approved by the CPO-HE.
The person opening the proposals shall not serve as a witness. The name of the person opening the proposals, the name of the person serving as the State witness, the name of each offeror, the number of modifications received (if any), a description sufficient to identify the supply or service item offered, a notation that the package contains a price proposal, and such other information as determined by the CPO-HE or SPO shall be recorded on a form prescribed by the CPO-HE, read aloud, and otherwise made available through an electronic procurement system approved by the CPO-HE.

g) Evaluation of Proposals

Evaluation Factors in the RFP. The RFP shall state all of the evaluation factors, including price, and their relative importance. Evaluation subfactors, if any, and their relative importance must be finalized prior to the opening and made available for inspection and copying upon opening. However, all price subfactors and their relative ranking must be shown in the RFP.

A) Demonstrations or presentations may be part of the evaluation criteria if provided for in the solicitation. The results of a demonstration or presentation may be included in scoring the proposal or to confirm the validity of the written proposal.

B) The criteria for demonstrations or presentations shall relate to the performance and intended use of the supply or service.

C) The RFP shall state the criteria for being invited to provide a demonstration or presentation.

D) Demonstrations or presentations shall be conducted in a manner that provides fair and equitable treatment to offerors.

Evaluation. The evaluation shall be based solely on the evaluation factors set forth in the RFP and no other factors shall be considered, except as communicated in advance to each proposer with opportunity to make necessary adjustments to the proposal.

A) Numerical rating systems shall be used unless another scoring tool is authorized by the SPO. Any scoring tool shall reflect the evaluation criteria and ranking set forth in the RFP and any subfactors identified at the opening.

B) Proposals shall be submitted in three parts: the first, covering the price; the second, covering commitment to diversity; and third, covering all other items. Each part shall be evaluated and ranked independent of all other parts of all proposals. Each member of the evaluation committee must read and evaluate the third part individually and independently of all other members. All fields of the individual scoring sheet must be completed by each member of the evaluation committee.

i) The second part must include a Commitment to Diversity. (See Sec. 20-15 of the Code.) The evaluators shall consider the information provided in the response and the quality of that information when evaluating responses. Offerors must show a demonstrated commitment to diversity and require the allotment of points for Commitment to Diversity. Commitment to Diversity must account for 20% of the total points assigned to the third part.

ii) Factors to be considered in the award of points for the Commitment to Diversity component include, but are not limited to:

▪ whether or how well the offeror, on the solicitation being evaluated, met the goal of contracting or subcontracting with businesses owned by women, minorities, or persons with disabilities;

▪ whether the offeror, on the solicitation being evaluated, assisted businesses owned by women, minorities, or persons with disabilities in obtaining lines of credit, insurance, necessary equipment, supplies, materials, or related assistance or services;

▪ the percentage of prior year revenues of the offeror that involve businesses owned by women, minorities, or persons with disabilities;

▪ whether the offeror has a written supplier diversity program, including, but not limited to, use of diverse vendors in the supply chain and a training or mentoring program with businesses owned by women, minorities, or persons with disabilities; and

▪ the percentage of members of the offeror’s governing board, senior executives, and managers who are women, minorities, or persons with disabilities. [30 ILCS 500/20-15(e-5)]

C) After completion of the individual evaluations, the evaluation committee may meet to discuss the proposals to ensure full understanding of the proposals. The evaluation committee shall meet if significant or substantial variance of scores, divergent scoring comments, or other information suggests the need for further discussion.

D) No committee member shall attempt to unduly influence another member's scores by virtue of the member's individual or organizational rank within the university. After consideration of comments, individual evaluators may, for good cause, adjust their scores on their individual scoring sheets.

E) Evaluation of the parts may be conducted simultaneously, provided different evaluators are used to evaluate each part and no information is exchanged between the evaluators prior to completion of the evaluation. The price proposal shall be opened in the presence of a State witness and distributed to the appropriate evaluators.

h) Proposal Discussions with Individual Offerors

Purposes of Discussions. Discussions are held to:

A) promote understanding of the University's requirements and the offerors' proposals (e.g., determine in greater detail milestones, deliverables and timelines for completion of work); and

B) facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the RFP.

Conduct of Discussions. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and clarifications of proposals. Discussion may be conducted by the university, in consultation with the SPO, with vendors reasonably susceptible of being awarded a contract based on qualifications and price. If during the discussions it is determined there is a need for any substantial revision of, or change to, the RFP, the RFP shall be canceled and may be resolicited to incorporate the clarification or change. Auction techniques (revealing one offeror's price to another) and disclosure of any information from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.
Best and Final Offers. The SPO may request best and final offers from those offerors deemed acceptable after completion of any discussions. Best and final offers shall be submitted by a specified date and time. The SPO may conduct additional discussions or require another submission of best and final offers. The scope of the best and final offer and the number of vendors allowed to participate shall be defined by the SPO. The primary objective of best and final offers is to maximize the university's ability to obtain best value, based on the requirements and the evaluation factors set forth in the solicitation. If an offeror does not submit either a notice of withdrawal or another best and final offer, the offeror's immediately previous offer will be construed as its best and final offer.

i) Award

An award shall be made by the SPO pursuant to a written determination showing the basis on which the award was found to be most advantageous to the State, taking into consideration price and evaluation factors set forth in the RFP. The contract file shall contain the basis on which the award is made. Any changes negotiated after award, other than reduction in price, must be submitted to the SPO for approval prior to contract execution.

History

Source: Amended at 46 Ill. Reg. 2921, effective February 18, 2022

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.2020 Small Purchases

a) When making a small purchase, the university shall ensure maximum reasonable competition and promote small businesses, diversity, transparency and other statutory policies. For all small purchases of $20,000 or more, quotes must be sought from at least three vendors whenever practical, be in writing, and be maintained in the procurement file.

b) Small Purchase Threshold

Individual procurements of $100,000 or less for supplies or services, other than professional and artistic, may be made without the notice or level of competition otherwise required of competitive sealed solicitations.
Procurements for construction and construction-related services of $100,000 or less may be made without the notice or level of competition otherwise required of competitive sealed solicitations.
Procurements of $100,000 or less for professional and artistic services and that have a nonrenewable term of one year or less may be made without the prior notice or level of competition otherwise required of competitive sealed solicitations. Notice of award of these small professional and artistic service contracts must be published in the Bulletin within 14 days after contract execution, and shall include the name of the SPO, reason for the exception, description of the procurement, name of the university decision maker, contract reference number and contract price.

c) Determination and Application of CPI

Each April the CPO-HE will determine the CPI adjustment to the small purchase thresholds applicable to the next fiscal year.
If the CPI is greater than zero, the thresholds identified in Section 20-20(a) of the Code will be reduced in an amount that, with the CPI increase, would result in the small purchase thresholds remaining as stated in subsection (b).
By July 1, 2019 and every five years thereafter, the CPO-HE will review the small purchase thresholds to determine if a modification to the thresholds is needed. If a modification is needed, the CPO-HE shall consult with the Procurement Policy Board.

d) Determination of Small Purchase Status

In determining whether a contract is under the small purchase limit, the stated value of the supplies or services, plus any optional supplies and services, and the value of any renewals, determined in good faith, shall be utilized. Trade-in value is not to be considered in determining whether a contract is under the small purchase limit. When the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a 12 month period.
If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not-to-exceed limit applicable to the type of procurement (see subsection (a)).
If, after signing the contract, the actual cost of completing the contract is determined to exceed the small purchase amount, and the SPO determines that a supplemental procurement is not economically feasible or practicable because of the immediacy of the agency's needs or other circumstances, the SPO shall follow the procedures for sole source or emergency procurement, whichever is applicable, to complete the contract.

e) Purchases shall not be artificially divided so as to avoid a competitive procurement.

f) Repetitive Need

If there is a repetitive need for small procurements of the same type (which may be evidenced by a pattern of small purchases, as determined by the university or the SPO), the university shall consult with the SPO to consider whether issuing a competitive sealed bid or proposal for procurement of those needs is in the best interests of the State.

History

Source: Amended at 44 Ill. Reg. 3884, effective March 13, 2020

44 Ill. Adm. Code 4.2025 Sole Source and Sole Economically Feasible Source Procurement

a) Application

The provisions of this Part apply to procurements from a sole source and sole economically feasible source unless the estimated amount of the procurement is within the limit set in Section 4.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 4.2030 (Emergency Procurements), in which case those other procedures may be used.

b) Conditions for Use of Sole Source and Sole Economically Feasible Source Procurement Method

Sole source procurement is permissible when a requirement is available from only a single supplier. Sole economically feasible source is permissible when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if more than one vendor is authorized to provide that item. The following are examples of circumstances that could necessitate sole source and sole economically feasible source procurement, but are not exhaustive:

compatibility of equipment, accessories, replacement parts or service is a paramount consideration;
items are needed for trial use or testing of a specific product or service;
item is for commercial resale and obtained from the manufacturer or sole authorized distributor;
noncompetitive public utility services;
item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;
media for advertising;
art, entertainment services or athletic events;
radio and television broadcast rights;
procurements related to participation in mandated educational, professional, research, public service or athletic activities of organizations of which the university is a member. These procurements may include, but are not limited to, dues and membership fees, travel and lodging and facility usage fees;
federal or State grant requires a specific named vendor as a condition of the grant;
items required by an existing franchise agreement;
items that are required for research and no other source is able to meet the need as documented by the principal researcher; or
new, latest edition textbooks that are only available from the publisher or sole distributor in classroom quantities.

c) Sole Source Determination

As soon as a need is identified by the university, the SPO must be contacted to determine the appropriate procurement method. The final determination as to whether a procurement shall be made as a sole source or sole economically feasible source procurement shall be made by the SPO, based on a request made by a university. The request shall be in writing on a form prescribed by the PPB and shall include the basis for the sole source or sole economically feasible source determination. Prior to authorizing the university to enter into a contract based on the sole source or sole economically feasible source request, the CPO-HE shall offer to conduct a public hearing and make a final determination as required by Section 20-25(a) of the Code. Any request for hearing must be made at least 5 calendar days prior to the date of the scheduled hearing. If no request for hearing is made, the hearing will be cancelled. No sole source or sole economically feasible source procurement may proceed without final approval by the CPO-HE.
To support a sole source request, the university may use research material available from the internet, trade shows, publications, peer networking and similar sources. A justification must be provided detailing why the need could not be obtained through a competitive process. That a vendor has supplied samples, demonstrated its product, provided the supplies or services through prior small purchases, or engaged in a pilot project is not sufficient justification, in and of itself, to support a sole source.

d) Hearing

Any hearing required shall be conducted in accordance with Subpart U.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2030 Emergency Procurements

a) Authority to Make Emergency Procurements

The provisions of this Part apply to every procurement over the small purchase limit set in Section 4.2020 (Small Purchases) made under emergency conditions. A university shall have the authority to make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods.

b) Statutory Emergency Conditions

A statutory emergency condition exists:

when there exists a threat to public health or public safety;
when immediate expenditure is needed for repairs to university property in order to protect against further loss or damage to university property;
to prevent or minimize serious disruption in critical university services that affect health, safety, or collection of substantial State revenues; or
to ensure the integrity of university records.

c) Quick Purchase. The quick purchase emergency method of source selection is allowed in certain situations, including, but not limited to:

protecting the health and safety of any person;
items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a "quick purchase" immediately to take advantage of the availability and price;
rare items, such as articles of historical value or art collections, are available for a limited time;
the opportunity to obtain entertainment, speakers and athletic and other events or performances (not exempt under Section 1-13 of the Code) is available for a limited time;
immediate action is necessary to avoid lapsing or loss of federal or donated funds.

d) Scope of Emergency Conditions

Emergency procurement shall be limited to those supplies, services, construction or other items necessary to meet the emergency need. In certain situations, the purchase to meet the immediate need (i.e., the temporary solution) may, by necessity, also be the permanent solution. In this event, the notice shall describe that circumstance.

e) Source Selection Methods

Any method of source selection, whether or not identified in this Part, may be used to conduct the procurement in emergency situations. Whenever practical, existing State contracts shall be utilized. Such competition as is practicable shall be obtained recognizing the need to obtain the item in time to meet the emergency need. Documentation of all efforts made to obtain competition, including efforts at diversity, shall be made part of the procurement file.

f) Determination and Record of Emergency Procurement

Determination. The university shall make a written determination stating the basis for an emergency procurement, showing that the situation meets criteria for an emergency established by the Code and this Part and providing the reason for selecting the particular vendor. These determinations shall be kept in the contract file.
Emergency Contract Award. For purposes of an emergency contract, an emergency contract is awarded on the earliest of the date a university communicates to a vendor when to start work, the date of publication on the Illinois Procurement Bulletin identifying the selected vendor of the required supplies or services, or the date the contract is signed by both parties. Documentation of the contract award date shall be part of the procurement file.
Statement. The university shall prepare a statement for each emergency procurement (including statutory, quick purchases and extensions of emergency contracts beyond 90 days) and shall file it with the CPO-HE, PPB and Auditor General within 10 days after the contract is awarded. The statement shall be submitted electronically through the Bulletin, but if the Bulletin is not available, the statement shall be submitted through alternate means. The statement shall include the following information:

A) the vendor's name;

B) the amount and type of the contract (if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known);

C) a description of what the vendor will do or provide;

D) the reasons for using the emergency method of source selection.

Publication. Notice of the emergency procurement shall be published in the Bulletin as specified in Sections 15-25(c) and 20-30 of the Code no later than 5 days after the contract is awarded and shall include a description of the procurement, the reasons for the emergency procurement, the emergency statement, and the total cost. When only an estimate of the total cost is known at the time of publication, the estimate shall be identified as an estimate and published. When the total cost is determined, it shall also be published in like manner before the 10th day of the next succeeding month.

g) Duration of Emergency Contract

The term of the temporary solution emergency contract shall be limited to the time reasonably needed for a competitive procurement for the permanent solution, not to exceed 90 days.
A temporary solution emergency contract may be extended beyond 90 days if the CPO-HE determines additional time is necessary and the contract scope and duration are limited to the emergency. Prior to execution of the extension, a public hearing shall be held at which any person may present testimony.
Notice of Extension. Notice of intent to extend an emergency contract shall be published in the Bulletin at least 14 days prior to a public hearing. Notice shall include at least a description of the need for the emergency extension, the vendor, and the date, time and location of the public hearing.
The initial determination as to whether an emergency shall be extended for a term longer than 90 days shall be requested by the university, in the form of an extension request submitted to the SPO using the form prescribed by the CPO-HE. The request shall include the justification for the extension. Prior to execution of the extension, a public hearing shall be held at which any person may present testimony. The CPO-HE may conduct the hearing or may authorize a hearing officer to hold the hearing and make a recommendation. The CPO-HE shall make a final determination as required by Section 20-30(a) of the Code. The final determination shall be published in the Bulletin. The term of the proposed contract extension may be shortened or lengthened as determined by the CPO-HE.

h) Contract Extension Hearing

The hearing shall be conducted in accordance with Subpart U.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2033 Best Value Procurements

a) Definition − A best value procurement means a contract award determined by objective criteria related to price, features, functions, and life-cycle costs that may include:

total cost of ownership, including warranty, under which all repair costs are borne solely by the warranty provider; repair costs; maintenance costs; fuel consumption; and salvage value;
product performance, productivity, and safety standards;
the supplier's ability to perform to the contract requirements; and
environmental benefits, including reduction of greenhouse gas emissions, reduction of air pollutant emissions, or reduction of toxic or hazardous materials.

b) A best value source selection may only be used for purchases of heavy mobile fleet vehicles and off-road construction equipment. The total annual value of vehicles and equipment purchased through the best value source selection shall not exceed $20,000,000 per university. [30 ILCS 500/25-85] Each university shall track expenditures made under this method of source selection and shall report annually the cumulative value of these expenditures to the CPO-HE.

c) A best value procurement shall be conducted in accordance with Section 4.2015 (Competitive Sealed Proposals). In addition to the requirements of Section 4.2015, the solicitation document shall:

Specify what performance factors will be given weighted value.
Identify all evaluation factors to be used in determining the successful offeror.
Give substantial weight to pricing in the evaluation of the successful offeror.

d) Award will be made to the offeror proposing the best combination of performance, qualifications, price and other factors identified in the evaluation criteria.

e) In addition to the publication requirements contained in Section 4.1525(d) (Bulletin Content), upon the written request of any person or entity that submitted an offer, notice of award shall be posted 24 hours in advance of contract execution in a public place at the offices of the university. The solicitation document shall identify where the notice of award shall be posted.

f) Protests may be filed by any person or entity that submitted an offer and will be conducted in accordance with Section 4.5550 (Protests). Within 10 days after filing a protest, the protesting offeror shall file a full and complete statement with the CPO-HE or Protest Review Officer identifying the grounds for the protest and any facts in support of the protest.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2035 Competitive Selection Procedures for Professional and Artistic Services

a) Application

The provisions of this Section apply to every procurement of professional and artistic services except those subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and except as provided in subsection (e).
"Professional and artistic services" means those services provided under contract to a university by a person or business, acting as an independent contractor, qualified by education, experience and technical ability [30 ILCS 500/1-15.60].

b) Professional and artistic services are further defined as follows:

"Qualified by education" means the individual who would perform the services must have the level of experience appropriate to the task, as specified in the Request for Proposals.
"Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the Request for Proposals.
"Qualified by technical ability" means the individual who would perform the services demonstrates a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the Request for Proposals.
An essential element distinguishing professional services from other services is confidence, trust and belief in not only the ability, but the talent, of the individual performing the service.
Professional and artistic services are primarily for intellectual or creative skills. Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts.
If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.
When a university requires services that meet the requirements of this subsection (b), the competitive selection procedures described in this Section must be followed. Services that do not meet the requirements of this Section must be procured in accordance with the other methods of source selection authorized by the Code and this Part.

c) The categories of services enumerated in this subsection (c) shall be considered and procured as professional and artistic services. With regard to other services, the SPO may determine whether the factors identified in subsection (b), when applied to particular services to be procured, require the services to be procured as professional and artistic under these competitive selection procedures, or as services that are subject to one of the other methods of source selection authorized by the Code and this Part. The following categories are examples of disciplines that would always be professional and artistic services:

law;
accounting;
medicine;
dentistry;
clinical psychology; and
custom-produced art.

d) Architect, engineering and land surveying services shall be procured in accordance with the source selection procedures of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and are subject to the procedures for all other professional services established in the Code or this Part. For professional services with an estimated basic professional service fee of $25,000 or more, the SPO shall publish notice of award or notice of intent to award to the Bulletin for a minimum of 14 days prior to execution of the contract.

e) Conditions for Use of Competitive Selection Procedures.

Except as authorized under Section 20-25 (Sole Economically Feasible Source Procurement) or Section 20-30 (Emergency Procurements) of the Code, these competitive selection procedures shall be used for all procurements of professional and artistic services of more than $100,000.

Services of $100,000 or less and for a nonrenewable term of one year or less may be procured in accordance with Section 4.2020 (Small Purchases) of this Part, except notice of the contract must be published as provided in accordance with Section 35-35(b) of the Code and include the name of the CPO-HE or SPO and a brief explanation of the reason for the exception.
Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited. If there is a repetitive need for small professional and artistic procurements of the same type that may be evidenced by a pattern of small purchases, as determined by the university or the SPO, the university shall consult with the SPO to consider whether issuing a competitive sealed proposal for those needs is in the best interests of the State.

f) Request for Proposals

Professional and artistic services shall be procured using an RFP.

Contents. The RFP shall be in the form specified by the CPO-HE and shall contain at least the following information:

A) the type of services required;

B) a description of the work involved;

C) an estimate of when and for how long the services will be required;

D) the type of contract to be used;

E) a date by which proposals for the performance of the services shall be submitted;

F) a statement of the minimum information that the proposal shall contain, which may, by way of example, include:

i) the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

ii) if deemed relevant, the age of the offeror's business and average number of employees over a previous period of time, as specified in the RFP;

iii) the abilities, qualifications and experience of all persons who would be assigned to provide the required services;

v) a plan giving as much detail as is practical explaining how the services will be performed;

G) price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package);

H) the factors to be used in the evaluation and selection process and their relative importance; and

I) a plan for post-performance review to be conducted by the university after completion of services and before final payment and made part of the procurement file.

Evaluation. Proposals shall be evaluated on the basis of evaluation factors stated in the RFP. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum evaluation factors are:

A) the plan for performing the required services;

B) ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services and the qualifications and abilities of personnel proposed to be assigned to perform the services;

C) the personnel, equipment and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

D) a record of past performance of similar work.

g) Receipt and Handling of Proposals

Proposals shall be submitted to and opened by the university unless otherwise directed by the CPO-HE or SPO.

Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP in the presence of a State witness, or through a secure electronic procurement system approved by the CPO-HE.
The person opening the proposals shall not serve as a State witness. The name of the person opening the proposals, the name of the person serving as the State witness, the name of each offeror, the number of modifications received (if any), a description sufficient to identify the supply or service offered, a notation that the package contains a price proposal, and any such information determined by the CPO-HE or SPO shall be recorded on a form prescribed by the CPO-HE, read aloud, and otherwise made available through an electronic procurement system approved by the CPO-HE.
Proposals and modifications shall be opened in a manner to avoid disclosing contents to competitors. Until an award recommendation is made, no university personnel or contractual agents other than the evaluation committee and those assigned to the procurement may review the proposals, except with justification from the purchasing director and approved by the SPO. The university conducting the procurement shall not disclose any information contained in any proposal with any other offeror other than information that was recorded, read and made publicly available at the opening of the bids. After completion of the evaluation and award recommendation, the university may conduct discussions with management and board of trustees if necessary to obtain approval for award prior to publishing the award in the Bulletin. If discussions within the university are necessary to evaluate the proposals, the SPO shall require that confidentiality and conflict of interest statements be executed.

h) Discussions

Discussions Permissible. The CPO-HE or SPO may conduct discussions with any offeror to:

A) determine in greater detail the offeror's qualifications; and

B) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance and the relative utility of alternative methods of approach. The CPO-HE or SPO may request revisions after discussions for the purpose of obtaining best and final offers.

Discussions shall not disclose any information derived from proposals submitted by other offerors, and the university conducting the procurement shall not disclose any information contained in any proposals with any other offeror.

i) Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation and discussion, the SPO shall rank the acceptable offerors in the order of their respective qualifications.

j) Evaluation of Pricing Data

Ranking by price is required for all professional and artistic proposals with an annualized value that is more than $100,000. When annualized value cannot be determined, ranking by price is required.

If the low price is submitted by the most qualified vendor, the SPO may award to that vendor.
If the price of the most qualified vendor is not low and if it is not more than $100,000 annually, the SPO but not a designee may award to that vendor.
If the price of the best qualified vendor is not low and if it is more than $100,000 annually, the SPO, but not a designee, may award to that vendor but must state why a vendor other than the low-priced vendor was selected and that determination shall be published in the Bulletin.

k) Negotiation and Award of Contract

General. The university, in consultation with the SPO, shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The university, in consultation with the SPO, may, in the interest of efficiency, negotiate with the next highest ranked vendor, while negotiating with the best qualified vendor.
Elements of Negotiation. At a minimum, contract negotiations shall be directed toward:

A) making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

B) determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services and the scope, complexity and nature of those services.

Successful Negotiation of Contract with Best Qualified Offeror

A) If compensation, contract requirements and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is canceled.

B) Compensation must be determined in writing to be fair and reasonable. Fair and reasonable compensation shall be determined by the university, in consultation with the SPO, based on the circumstances of the particular procurement, including, but not limited to, the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, other available pricing information and the university's identified budget.

C) Contracts entered into under this Section shall provide:

i) the duration of the contract, with a schedule for delivery when applicable;

ii) the method for charging and measuring cost (hourly, daily, etc.);

iii) the rate of remuneration;

iv) the maximum price; and

v) whether the services of subcontractors will be used.

Failure to Successfully Negotiate Contract with Best Qualified Offeror

A) If compensation, contract requirements or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons shall be placed in the file. The university, in consultation with the SPO, shall advise the offeror of the termination of negotiations.

B) Upon failure to successfully negotiate a contract with the best qualified offeror, the university, in consultation with the SPO, may enter into negotiations with the next most qualified offeror.

l) Multiple Awards

The SPO may authorize a solicitation for professional and artistic services that includes an intent to make multiple awards based upon a need demonstrated by the university to have multiple vendors under contract. Any multiple awards shall be conducted in accordance with Section 4.2036(b).

m) Notice of Award

Notice of award shall be in accordance with Section 4.1525(d) and (e).
Notice of award of professional and artistic service contracts that are nonrenewable, are one year or less in duration, and have a value of $100,000 or less must be published in the Bulletin in accordance with Section 35-35(b) of the Code. The notice shall include the name of the SPO and a brief explanation of the procurement.

n) Prequalification

Prequalification of professional and artistic vendors shall not be used to bar or prevent an otherwise qualified person from responding to a request for proposal for professional and artistic services.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2036 Other Methods of Source Selection

Notice of the results of any of the following methods must be published in the Bulletin in the form and format specified by the CPO-HE.

a) Split Award

b) Multiple Award

An award may be made to two or more vendors for similar supplies or services when there is a need that cannot reasonably be met by a single award as determined by the university and SPO.

Supplies and services may be solicited with the intent to make multiple awards. The solicitation must state this intent and describe the type of multiple award in detail and the methodology for determining which vendor from among the multiple awardees will receive an as-needed individual order.
Types of Multiple Awards

A) Progressive (Primary with Alternates)

B) Pre-qualified Pool of Vendors

i) When it may be more efficient or more appropriate based on the nature of the item to establish a pool of qualified vendors and then select from among that pool as needs arise, the university may use an RFP to identify vendors who meet the criteria for the pre-qualified pool. The university may select the pool from among the vendors ranked most qualified, but the number in the pool shall be the minimum necessary to meet the need, and generally not exceed 10. Once selected, these vendors shall be considered of equal rank. If appropriate and within legal requirements, an alternate pool for the same item may be established to promote statutory preferences, goals, policies and programs (e.g., Business Enterprise for Minorities, Women, and Persons with Disabilities (BEP) Act, Veterans Business Program (VBP), and small business set-aside).

ii) When there is a specific need, each pool vendor will be contacted directly in writing and asked to submit a price, timeline for completion and any other information necessary to address the need by a specified date. The vendor submitting the response that meets stated needs and is the lowest price or that provides the best value will have the award. The method of selection shall be identified in the request for quotation.

iii) If it is not practicable for the university to discuss the particular need with each pool vendor, the university may, with SPO approval, select the two most qualified, based on the initial selection of the pool, to discuss the particular need. The university must detail the reasons for the selection and obtain SPO approval. Documentation to the procurement file must contain the reason why pre-selection discussions with all pool vendors were not practicable.

Exception for Conflict or Capacity

If there is a known conflict of interest or the vendor otherwise eligible for the order is not available to perform, the next low or next best value vendor shall be offered the order.

Type of Contract

Multiple award contracts shall be considered master ordering agreements. Supplies or services ordered under these contracts shall be documented on the order that refers to that agreement. A multiple award contract is not a requirements contract and does not guarantee any level of ordering activity by the university.

If a particular quantity requirement arises that exceeds the university's normal requirement or a quantity or amount specified in the contract, a separate solicitation may be issued.
Despite the existence of a multiple award, the need may be met by a separate single award solicitation.

c) Term and Condition Contracts

A term and condition contract contains agreed contractual terms and conditions established for the convenience of the parties to be used in conjunction with a subsequent procurement and processed in accordance with the requirements of the Code and this Part. A term and condition contract is not a procurement. It creates no obligation on the part of the university to procure from the vendor, nor does it create an authorization for a university to order based on that term and condition contract, except as provided by subsection (c)(2).
Orders may be placed against term and condition contracts without use of any method of source selection specified in the Code for convenience of processing sole source, emergency or small procurements.

d) Auction

Purchases may be made at auction in accordance with the procedural requirements applicable to the particular auction. Prior notice and competition is not required and the amount payable shall be the amount bid and accepted plus any required buyer's premium.

e) Federal Requirements

The SPO for any university receiving federal aid funds, grants or loans or otherwise subject to federal entity requirements may conduct procurements in accordance with federal requirements that are necessary to receive or maintain those federal aid funds, grants or loans or to remain in compliance with federal requirements, except as provided in Section 1-13 of the Code.

f) Foreign Country Procurement

Procurements to meet the needs of university offices located in, or university programs operated in, foreign countries shall comply with the provisions of the Code to the extent practical. [30 ILCS 500/20-90] Procurements conducted solely in a foreign country to meet the needs of a university office or program located in that country are delegated to the university. The university shall provide a summary of the procurement or a copy of the procurement file to the SPO upon request.

g) Donations

When a procurement will have the majority of funding from a donation, the terms of which require use of a named vendor or the procurement of a particular good or service, the SPO shall comply with those requirements, but shall otherwise follow the Code and this Part.
Donations may be acknowledged by the donee university in a manner appropriate to the type of donation and the program activity associated with the donation. Acknowledgment may include, but need not be limited to, public announcement at the event or in donee university publications, and inviting the donor to attend the program activity associated with the donation.

h) Broker Method for Obtaining Certain Insurance Coverages

Notwithstanding anything to the contrary in this Part, the CPO-HE, but not a designee, may, on a case-by-case basis, authorize the use of this broker method to obtain insurance coverages when use of the methods of source selection set forth in Article 20 of the Code is not practicable or advantageous because, for example:

B) The process of obtaining quotes for needed insurance coverages cannot be accomplished within the normal procurement timeframes.

If the CPO-HE determines that this broker method is preferable for designated coverages, a two-part procurement process will be used to obtain the coverages.

A) A broker will be selected in accordance with the RFP process authorized by Section 20-15 of the Code, and the resulting contract will be subject to all requirements of the Code. The broker contract will be issued for a term of years, and during the term of the contract the broker will assist the university in obtaining coverages as set forth in subsection (i)(2)(B) of this Section as well as providing customary services such as issuing certificates of insurance and servicing policies.

B) The broker will assist the university by serving as broker of record in obtaining insurance coverages through the industry process of going to market to obtain quotes. The university will use an evaluation team to test the market for competitiveness, review the quotes, and select the insurers and products best fitting its needs. The solicitation, evaluation and selection process will be documented in writing and become a part of the public procurement file. The insurance coverages obtained, the term of coverage, and the premiums charged will be posted on the Bulletin as attachments to the broker award notice.

i) Job Order Contracting

Definition − A Job Order Contract is a competitively bid, indefinite quantity contract intended for new construction, renovation and repairs with pre-established unit prices in which a university provides a definition of the work scope and a vendor selected from a list of qualified vendors furnishes all management, documentation, design and incidental drawings, labor, materials, supplies, parts, transportation, equipment and supervision needed to perform the work as required. Ordering is accomplished by means of issuance of a Work Order against the Job Order Contract.
Conditions of Use − The Chief Procurement Officer may authorize the use of a Job Order Contract upon a determination in writing that such use is necessary for adequate delivery, service or product compatibility, and that the methods of source selection set forth in Article 20 of the Code is either not practicable or advantageous because, for example, the program needs of a university cannot reasonably be met within the normal procurement timeframes, or that the type and variety of needs are such that a single award will not assure the needed availability or diversity of vendors.
Procedure − A Job Order Contract shall be initiated by the issuance of an Invitation for Bids in the form required by Section 4.2010 (Competitive Sealed Bidding), except as otherwise provided in this subsection (j)(3). In addition to the requirements set forth in Article 30 of the Code and Section 4.2010, the Job Order Contract Invitation for Bid shall include:

A) A detailed description of the scope of the Job Order Contract, including performance, technical requirements and specifications, and minimum and maximum work order amounts;

B) the reasons for using a Job Order Contract;

C) a description of the process that will be used to evaluate qualifications and proposals, including a method for determining each Vendor's Price Adjustment Factors utilizing the published Construction Task Catalog® and Technical Specifications documents; and

D) that the SPO may conduct oral or written discussions of the offers.

Award − Those vendors meeting minimum qualifications shall be offered non-exclusive indefinite quantity contracts against which a university may later place one or more work orders on an as needed basis in accordance with the allocation of work procedure set forth in subsection (j)(5).
Allocation of Work − Work Orders shall be allocated among qualifying vendors on an as needed basis. Once a need is identified, the university shall allocate work for that project using Job Order Contracting from the list of qualified vendors. The university shall select the vendor that best addresses its needs for the project based on the work order allocation method specified in the IFB, which shall include such factors as price, capacity, past performance, geographic location, experience and knowledge. If the low price vendor is not selected, the university shall justify the alternative selection and submit the order to the SPO for approval. The SPO or PCM will periodically review any allocation of Work Orders and report to the CPO-HE with a recommendation for future action.
It shall be the affirmative obligation of each vendor with a Job Order Contract to update information provided to the contracting university regarding its continued ability to provide the contracted service. Job Order Contracts may provide that vendors who cannot perform the required services when contacted and who have not provided the updated information may be taken out of consideration for Work Orders for a period of time, including until the next prequalification.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.2037 Tie Bids and Proposals

a) Tie bids or proposals are those from responsive and responsible vendors that are, in the case or bids, identical in price and, in the case of proposals, identical in rank after evaluation.

b) Tie bids or proposals will be treated as follows:

If the tied vendors include only one Illinois resident vendor, the Illinois resident vendor shall be given the award. "Illinois resident vendor" has the meaning ascribed in Section 4.4510 (Resident Bidder and Offeror Preference).
If the award cannot be determined after applying the Illinois resident vendor preference, the bidder or offeror who is a BEP or VBP certified vendor shall be given the award.
In all other situations, the award shall be made by lot unless the SPO determines that:

c) Records

Records shall be made of all procurements on which tie bids or proposals are received, showing at least the following information:

the identification number of the solicitation;
a description of what was procured; and
a listing of all the bidders or offerors and the prices submitted.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2038 Modification or Withdrawal of Bids or Proposals

a) Modification or Withdrawal

A bidder or offeror may withdraw or modify a bid or proposal if notice of the withdrawal or modification is received by the SPO before the latest time specified for receipt of bids or proposals. Any modification or withdrawal, however, must be made in writing and received by the SPO prior to the scheduled bid or proposal opening. When time is of the essence, the SPO may agree to receive modifications or withdrawals by printed form conveyed by electronic mail, fax or telephone. An originally signed written confirmation of a telephone modification or withdrawal shall be mailed or delivered by the bidder or offeror on the same day. Withdrawal of bids or proposals after bid or proposal opening will not ordinarily be permitted; however, in those cases in which, in the judgment of the SPO, based on clear and demonstrable evidence, the bidder or offeror has made a bona fide error in the preparation of the bid or proposal and that error will result in a substantial loss to the bidder or offeror, an exception may be made.

b) Minor Informalities

c) Documentation Required

When a bid or proposal is corrected or withdrawn, or correction or withdrawal is denied, a written determination shall be prepared by the SPO showing that relief was granted or denied in accordance with this Part.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.2039 Mistakes

a) General

Corrections to bids, proposals or other procurement processes are allowed, but only to the extent not contrary to the best interest of the State or the fair treatment of other offerors.

b) Mistakes Discovered Before Opening

c) Confirmation of Mistake After Opening

d) Mistakes Discovered after Opening but Before Award

Minor Informalities

A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery or contractual conditions is negligible). The SPO shall waive these informalities or allow correction depending on which is in the best interest of the State. Examples of minor informalities as to form include the failure to:

A) return the required number of signed copies required by the solicitation document;

B) acknowledge receipt of an amendment to the solicitation, but only if:

i) it is clear from the bid or proposal that the bidder or offeror received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on price, quantity, quality or delivery.

Mistakes in Which the Intended Correct Information is Evident

If the mistake and the intended correct information are clearly evident on the face of the bid or proposal document, the information shall be corrected and the bid or proposal may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the solicitation document are typographical errors, errors in extending unit prices, transposition errors and arithmetical errors.

Mistakes in Which the Intended Correct Information is Not Evident

The bid or proposal may be withdrawn if:

A) a mistake is clearly evident on the face of the bid or proposal document but the intended correct bid or proposal is not similarly evident; or

B) there is proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

e) During Discussions; Prior to Best and Final Offers

Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may propose to correct any mistake, prior to the date set for conclusion of discussions or for receipt of best and final offers, provided the correction would not be contrary to the fair and equal treatment of other offerors.

f) Mistakes Discovered after Award

g) Documentation Required

The reason for allowing correction or withdrawal of bids or proposals shall be made part of the procurement file and shall be available for public inspection.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.2040 Cancellation of Solicitations; Rejection of Bids or Proposals

a) Policy

Any solicitation shall be cancelled before or after opening when a university requests or when the SPO determines cancellation to be in the State's best interest. Any cancellation shall be justified in writing. Prior to an SPO cancelling a solicitation, the SPO shall consult with the university in reaching a determination of whether cancellation is in the university's best interest. Nothing shall compel the award of a contract.

b) Cancellation of Solicitation; Rejection of All Bids or Proposals

A solicitation may be canceled in whole or in part when the SPO determines in writing that the action is in the State's best interest for reasons including, but not limited to:

A) the university no longer requires the supplies or services;

B) the university no longer can reasonably expect to fund the procurement;

C) proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable;

D) ambiguous or otherwise inadequate specifications;

E) the solicitation did not provide for consideration of all factors of significance to the university;

F) prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

G) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

H) there is reason to question whether the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

When a solicitation is cancelled, notice of cancellation shall be posted to the Bulletin.
The notice of cancellation shall:

A) identify the solicitation;

B) briefly explain the reason for cancellation; and

C) when appropriate, explain that an opportunity will be given to compete on any re-solicitation or any future procurements of similar supplies or services.

c) Rejection of Individual Bids or Proposals

Individual bids or proposals may be rejected for reasons including, but not limited to:

A) the vendor that submitted the bid or proposal is non-responsible as determined under Section 4.2046 (Responsibility);

B) the bid or proposal is not responsive, that is, it does not conform in all material respects to the solicitation, including submission requirements;

C) the supply or service item offered in the bid or proposal is unacceptable by reason of its failure to meet the announced requirements of the solicitation, including but not limited to specifications or permissible alternates or other acceptability criteria set forth in the solicitation, statement of work or quotation; or

D) the proposed price, including options, is clearly unreasonable.

Notice of Rejection. Upon request, bidders or offerors whose bid or proposal has been rejected shall be advised of the reasons for rejection.

d) Documentation

The reason for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.2043 Suppliers

A university may contract with any qualified source of supply, but shall use or consider, as applicable, the following special sources, from which procurements may be made without competition:

a) Correctional Industries in accordance with Subpart N.

c) Qualified workshops for persons with significant disabilities in accordance with Subpart N.

d) State agencies and other governmental units described in Section 1-10(b)(1) of the Code.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2044 Vendor List

Each university may maintain a list of vendors who have expressed interest in contracting with the university. This list may be used to solicit for small purchases and emergency procurements, as well as to supplement Bulletin notices. Inclusion in any university-maintained vendor list shall not be a requirement to be considered for future contracting opportunities.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.2045 Vendor Prequalification

a) The SPO may prequalify prospective vendors when determination of vendor qualifications or preliminary evaluation of supplies or services prior to solicitation would promote the effective conduct of procurement.

c) Any opportunity to prequalify shall be announced in the Bulletin. The notice shall alert vendors that fail to participate in the prequalification process of the consequences.

e) The fact that a prospective vendor has been prequalified generally does not necessarily represent a definitive finding of responsibility for a particular procurement.

f) When prequalifying a vendor, the SPO may consider factors tailored to a specific procurement or type of procurement, which shall be announced in the prequalification notice in the Bulletin.

g) Except in the case of professional and artistic services, distribution of and responses to a solicitation may be limited to prequalified vendors and award of a contract may be denied because a vendor was not prequalified. If eligibility for the procurement will be limited to prequalified vendors, the solicitation shall state that fact.

h) The prequalification may provide that any vendor who completes prequalification may refer to that prequalification when submitting responses to solicitation or in other procurement situations, instead of submitting that same information with a response. This does not alleviate a vendor from providing updated certifications and other information as part of the prequalification process.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2046 Responsibility

a) Application

Before making an award or approving a contract, the SPO must be satisfied the prospective bidder or offeror is responsible. If there is doubt about responsibility, and if a bond or other security would adequately protect the university's interests, then that bidder or offeror may receive an award or contract upon receipt of the bond or other security.

b) Standards of Responsibility

Factors to be considered in determining whether the standard of responsibility has been met include, but are not limited to, financial responsibility, insurability, effective equal opportunity compliance, payment of prevailing wages, if required by law, compliance with laws including goals and other preferences under the Code and the Business Enterprise for Minorities, Women, and Persons with Disabilities Act, capacity to produce or sources of supply, performance record in the business or industry, ability to provide required maintenance service and other matters relating to the bidder's or offeror's probable ability to deliver in the quality and quantity and within the time and price required under the contract, if it is awarded to the bidder or offeror. A bidder or offeror must be a legal entity prior to submitting the bid, offer or proposal and authorized to transact business or conduct affairs in Illinois prior to execution of a contract.

c) Information Pertaining to Responsibility

The university, in consultation with the SPO, may request information or conduct discussions with a bidder or offeror to determine in greater detail the bidder's or offeror's capability to perform and to determine prior compliance on State contracts with the standards of responsibility identified in subsection (b). This discussion is not for the purpose of determining whether one bidder's or offeror's product or service capability is superior to another. The prospective vendor shall supply information requested concerning the responsibility of such vendor. The university may supplement this information from other sources and may require additional documentation at any time in determining whether a vendors is responsible. If the vendor fails to supply the requested information or if in the performance of prior State contracts the vendor breached the standards of responsibility and failed to timely cure the deficiency, the SPO may disqualify the vendor or may base the determination of responsibility upon any available information.

d) Written Determination of Non-Responsibility Required

If a vendor who otherwise would have been awarded a contract is found non-responsible, a written determination of non-responsibility setting forth the basis of the finding shall be prepared by the university and approved by the SPO. The final determination shall be made part of the procurement file.

e) Affiliated Companies

Vendors that are newly formed business concerns having substantially the same owners, officers, directors or beneficiaries as a previously existing vendor that has been determined not responsible or has been suspended or debarred will also be determined to be not responsible.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2047 Security Requirements

a) Vendors shall furnish bid, proposal or performance security as specified in the solicitation or contract. The cost of providing security will be borne by the vendor unless otherwise stated in the solicitation.

c) Unless the amount is set by law, the university will determine the amount, in dollars or percentage of contract price, that will adequately protect the university's interests. That amount will vary depending on the type of procurement and the risks and potential losses associated with delay or failure to complete the project, and for other such reasons.

e) The vendor's source of supply may also be required to furnish security. If the vendor does not have a stock of the supplies in question in the amount required or the facilities to produce the item in that amount, the university may, in addition, require the vendor to have the source of supply furnish security acceptable to the university, conditioned on the source supplying the vendor as required in the solicitation.

f) Bid or Proposal Security

The bid or proposal security will be used to ensure the bidder or offeror meets all obligations imposed under the solicitation. This includes, but is not limited to, the obligation to keep the price, bid or proposal firm for as long a period as specified in the solicitation, to enter into a contract, and to file a performance security. The university may retain the bid or proposal security as damages if the bidder or offeror fails to meet its obligations.
The bid or proposal security will be returned to the vendor as soon as is practicable after the bid or proposal opening.. Bid or proposal security will be returned to the unsuccessful vendors upon execution of the contract.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.2050 Specifications and Samples

a) Responsibilities Regarding Specifications

The university shall write the necessary specifications, including the statement of work, subject to the SPO's review and approval. Any dispute with the SPO regarding the statement of work or scope of specifications can be escalated to the CPO-HE.

b) Procedures for the Development of Specifications

Specifications shall accurately reflect the university's needs. Specifications shall clearly and precisely describe the salient technical or performance requirements without being unduly restrictive or having the effect of requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.
Any specifications or standards adopted by business, industry, not‑for‑profit organization, or governmental unit may be incorporated by reference.
A specification may provide alternate descriptions when two or more design, functional, performance or other criteria will satisfactorily meet the university's requirements.
Article 45 of the Code shall be considered and applied when required or appropriate, including language on reducing barriers to participation by small and diverse vendors.
A solicitation or specification for a contract, or a contract, may not require, stipulate, suggest or encourage a monetary or other financial contribution or donation, cash bonus or incentive, economic investment, or other prohibited conduct as an explicit or implied term or condition for awarding or completing the contract. [30 ILCS 500/20-50]
As used in this Section, "prohibited conduct" includes requested payments or other consideration by a third party to the university or State agency that is not part of the solicitation or that is unrelated to the subject matter or purpose of the solicitation. "Prohibited conduct" does not include a payment from the vendor that is supported by additional consideration (such as exclusive rights to sell items or rights to advertise), other than the consideration of the State's awarding a contract to purchase goods and services. [30 ILCS 500/20-50]
The solicitation shall identify what specifications are essential and what optional specifications may be included in the project. All options must be identified in the invitation for bid or request for proposal as optional work.

c) Brand Name or Equal Specification

Brand name or equal specifications may be used in a competitive solicitation when:

A) no specification for a common or general use specification or qualified products list is available;

B) time does not permit the preparation of another form of specification;

C) the nature of the product or the nature of the university's requirement makes use of a brand name or equal specification suitable for the procurement; or

D) when the university determines that circumstances show this to be the most reasonable type of specification.

Brand name or equal specifications shall seek to designate more than one brand as "or equal", and shall further state that substantially equivalent products to those designated will be considered for award.
Unless the university determines in writing that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional or performance characteristics that are required.
Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use. Burden of proof that the product is equal is on the vendor.

d) Brand Name Only Specification

A brand name only specification may be used in a competitive solicitation provided the university makes a written request justifying that only the identified brand name item will satisfy the university's needs and the SPO approves in writing the use of the brand name only specification.
Brand name alone may be specified in order to fill medical prescription needs, to stock university retail-type operations, to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the SPO. A university may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time, and for that period the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected.
The university shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made under Section 4.2025 (Sole Economically Feasible Source Procurement).
The SPO shall provide a quarterly report to the CPO-HE of solicitations conducted using brand name only.

e) Qualified Products List

A qualified products list may be developed by the university, with approval of the SPO, when testing or examination of the supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy university requirements.
When developing a qualified products list, notice shall be posted to the Bulletin soliciting potential suppliers to submit products for testing and examination to determine acceptability for inclusion in a qualified products list.
Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements.

f) Proven Products

The supply or service may be rejected if it has not been offered to other governmental or commercial accounts for at least one year prior to the notice date of a solicitation. Specifications may require that the supply or services must have been used in government or commercial venues for a specified period of time to be considered.

g) University Required Samples

Samples or descriptive literature may be requested when it is necessary to evaluate required characteristics of the items bid. Any required samples must be submitted as instructed in the solicitation, with transportation prepaid by the vendor. Each sample must be labeled with the vendor's name, address and a means of matching the sample with the applicable bid or proposal.
Any sample submitted must be representative of the item that would be delivered if a contract were awarded for that item. Samples submitted by a successful vendor will be retained to check continuing quality and compliance with specifications. Submission of samples will not limit the university's right to require adherence to specifications.
No payment will be made for samples. Samples not destroyed or consumed by examination or testing will be returned upon request and at vendor's expense. The request must be made at time of submission with return collect or prepayment provisions and instructions for return accompanying the samples.
Unsolicited samples or descriptive literature are submitted at the vendor's risk, may or may not be examined or tested, will not be deemed to vary any of the provisions of the solicitation, and may not be utilized by the vendor to contest a decision or understanding with the university.

h) Product Demonstration

Subject to the requirements of Section 50-39 of the Code, a vendor may request to demonstrate a product or service. Agreement to allow a demonstration will be solely at the university's discretion and will not entitle the vendor to a contract nor shall payment for the demonstration be allowed unless a written contract had been executed prior to the demonstration. No payment will be made for the demonstration period except as agreed to in advance. If the price exceeds the small purchase amount, the product must be acquired under Section 4.2025 of this Part. The product demonstrated will be returned upon request and at the vendor's expense. The request must be made prior to the time of product demonstration with return collect or prepayment provisions and instructions for return accompanying the product demonstration.

i) Specifications Prepared by Other Than University Personnel

As provided in Section 4.2005(v), specifications may be prepared by other than university personnel, including, but not limited to, consultants, architects, engineers, designers and other drafters of specifications for public contracts provided there is no conflict of interest or an exception has been approved in accordance with Section 4.2005(v)(4)(B). Contracts for the preparation of specifications by other than university personnel shall require the specification writer to adhere to university requirements and the terms of the Code, particularly Section 50-10.5, and this Part. The university must inform the SPO of specifications prepared by anyone other than university personnel. The SPO retains the authority for final approval of the specifications. Any dispute with the SPO regarding the statement of work or scope of specifications can be escalated to the CPO-HE.

j) Pre-Solicitation Request for Information

When the university does not have sufficient information about available supplies or services to issue a solicitation, the university, in consultation with the SPO, may issue a pre-solicitation request for information inviting vendors to submit information about the availability of specified types of supplies and services. Public notice of the pre-solicitation request for information shall be published in the Bulletin at least 14 days before the date set for the receipt of information. The submission of information by a vendor in response to a pre-solicitation request for information is not a prerequisite for that vendor to respond to a subsequent solicitation for the types of supplies and services for which information was solicited, and the issuance of a pre-solicitation request for information does not commit the university to make any procurement of supplies or services of any kind. Confidential information will not be accepted from a vendor in response to a pre-solicitation request for information. All information received through a pre‑solicitation request for information will be part of the publicly available procurement file. An RFI is to be used for information gathering only and is not a vehicle for procuring supplies or services.

k) When procuring freight, small package delivery, and other forms of cargo shipping and transportation services, appropriate weight shall be given to the requirements of the Transportation Sustainability Procurement Program Act [30 ILCS 530]. [30 ILCS 500/20-165]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.2055 Types of Contracts

a) Scope

This Section contains descriptions of types of contracts and limitations as to when they may be utilized by the university in its procurements. Types of contracts not mentioned in this Section may be utilized with approval of the SPO.

b) Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

A percentage mark-up from an agreed price list is not a cost-plus-a-percentage-of-cost contract.
A percentage mark-up from the cost of a supply or service selected by the university or another vendor under contract to the university is not a cost‑plus-a-percentage-of-cost contract.
A percentage mark-up from cost for parts needed in relation to a contract for services does not convert the services contract to a prohibited cost-plus-a-percentage-of-cost contract provided the parts supplied under the cost-plus-percentage-of-cost method do not exceed 20% of the value of the contract.

c) Types of Fixed-Price Contracts

Firm Fixed-Price Contract. A firm fixed-priced contract provides a price that is not subject to adjustment because of variations in the vendor's cost of performing the work specified in the contract.
Fixed-Price Contract with Price Adjustment

i) changes in the vendor's labor agreement rates as applied to an industry or area (such as are frequently found in contracts for the purchase of coal);

ii) changes due to rapid and substantial price fluctuations that can be related to an accepted index (such as contracts for gasoline, heating oils and dental gold alloy); and

iii) in requirement contracts, in which a vendor is selected to provide all of the university's needs for the items specified in the contract, when a general price change applicable to all customers occurs, or when a general price change alters the base price (such as a change in a manufacturer's published price list or posted price to which a fixed discount is applied pursuant to the contract to determine the contract price).

B) If the contract permits unilateral action by the vendor to bring about the condition under which a price increase may occur, the university shall have the right to reject the price increase and terminate without cost the future performance of the contract.

d) Cost-Reimbursement Contracts

Determination Prior to Use

A) The university must submit to the SPO a justification for using any type of cost-reimbursement contract. This justification must be sufficient to show that such a contract is likely to be less costly to the university than any other type or that it is impracticable to obtain the items through any other type of contract. The SPO will consider the justification and any other relevant factors before making a written determination to authorize use of the cost‑reimbursement contract.

B) Any reimbursement of travel expenses authorized in the solicitation and the terms of the contract must be in accordance with applicable travel control board regulations.

Cost Reimbursement Contract. A cost reimbursement contract provides that the vendor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee. These contracts establish an estimate of total cost and must establish a ceiling that a vendor may not exceed. The SPO must provide a written determination that this type of contract is likely to be less costly than any other type of contract or that it is impracticable to obtain the item required except under this type of contract.
Cost-Plus-Fixed-Fee Contract. This cost-reimbursement type contract provides for payment to the vendor of an agreed fixed fee in addition to reimbursement of allowable incurred costs. The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for the work. Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed. The fee may be adjusted to provide for an increase or decrease in the scope of work. The adjustment must be made via a change order with approval of the SPO.
Cost Incentive Contracts

B) Fixed-Price Cost-Incentive Contract. In a fixed-price cost-incentive contract, the parties establish at the outset a target cost, a target profit (that is, the profit that will be paid if the actual cost of performance equals the target cost), a formula that provides a percentage increase or decrease of the target profit depending on whether the actual cost of performance is less than or exceeds the target cost and a ceiling price. After performance of the contract, the actual cost of performance is arrived at based on the total incurred allowable costs as provided in the contract. The final contract price is then established in accordance with the formula using the actual cost of performance. The final contract price may not exceed the ceiling price. The vendor is obligated to complete performance of the contract and, if actual costs exceed the ceiling price, the vendor suffers a loss.

C) Cost-Reimbursement Contract with Cost-Incentive Fee.

In a cost-reimbursement contract with cost-incentive fee, the parties establish at the outset a target cost; a target fee; a formula for increase or decrease of fee depending on whether actual cost of performance is less than or exceeds the target cost, with maximum and minimum fee limitations; and a cost ceiling that represents the maximum amount that the university is obligated to reimburse the vendor. The vendor continues performance until the work is complete or costs reach the ceiling specified in the contract, including any modification thereof, whichever first occurs. After performance is complete or costs reach the ceiling, the total incurred allowable costs reimbursed as provided in the contract are applied to the formula to establish the incentive fee payable to the vendor.

e) Performance Incentive Contracts

In a performance incentive contract, the parties establish at the outset a pricing basis for the contract, performance goals and a formula that varies the profit or the fee if the specified performance goals are exceeded or not met. For example, early completion may entitle the vendor to a bonus, while late completion may entitle the university to a price decrease.

f) Time and Materials Contracts; Labor Hour Contracts

Time and materials contracts provide for an agreed basis for labor performed and payment for materials supplied. Labor hour contracts provide only for the payment of labor performed. The contracts shall contain a stated ceiling or an estimate that shall not be exceeded without prior approval. An estimated time and materials contract shall be treated as an indefinite quantity contract.

g) Definite Quantity and Indefinite Quantity Contracts

Definite Quantity. A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services at specified times or when ordered, with deliveries or performance scheduled at designated locations upon order.
Indefinite Quantity. An indefinite quantity contract is a contract for an indefinite amount of supplies or services furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type. Generally, an indefinite quantity contract is based on historical usage or the best information available as to quantity as stated in the solicitation and is not a guarantee of a quantity to be ordered. The contract may provide a minimum quantity the university is obligated to order and may also provide for a maximum quantity provision that limits the university's ability to order. If an estimated quantity is identified, the university may order up to 20% more than the estimate without written SPO approval. The SPO may authorize ordering beyond the stated 20%. Any such authorization shall be documented in writing and published in the Bulletin. An increase of an indefinite quantity contract is not a change order.
Requirements Contracts. A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the university to order all its actual requirements during a specified period of time with deliveries or performance scheduled at designated locations upon order. If identified in the solicitation as a requirements contract, all needed quantity, regardless of any stated estimate, must be ordered from that contract. A requirements contract shall state a realistic estimated total quantity in the solicitation and resulting contract, but this is not a representation that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable or normal.

h) Leases

A lease is a contract for the use of supplies or real property under which title will not pass to the university at any time, except pursuant to an option to purchase. Leases of real property are governed in accordance with Article 40 of the Code and this Subpart M.

i) Recovery Contracts

Contracts may provide for payment to the vendor of a percentage of the amount the vendor recovers or collects on behalf of the university. The percentage may be fixed or may vary depending on amount of recovery or other factors, and the percentage may be paired with a fixed price or cost reimbursement method.

j) State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available in‑house or from State programs, such as Illinois Correctional Industries, may be ordered without violating any contract.

k) Extraordinary Quantities

Notwithstanding any provision in any contract, the university reserves the right to take bids separately if a particular quantity requirement arises that exceeds the university's normal needs or ordering requirements.

l) Energy Conservation and Energy Savings Contracts

Notwithstanding Section 20-60(a) of the Code, university procurements of energy conservation measures, including guaranteed energy savings contract, are defined in the Code and Public University Energy Conservation Act [110 ILCS 62] (PUECA) and shall be made in accordance with the Code, this Part, and as otherwise authorized by PUECA. Notwithstanding any other law, energy savings contracts or leases may include an alternative financing or lease to purchase option as part of the contract's terms.

m) Printing Cost Offsets

In accordance with university policies, the university may provide advertising rights in printed products to a vendor or receive free copies of printed products from a vendor in order to reduce the overall cost of a printing contract. Procurement by competitive sealed bid or competitive sealed proposal is required when the printing cost exceeds the small purchase limit of Section 4.2020 of this Part.

n) Contracting for Installment Purchase Payments, Including Interest

o) Food Donation

A university may not enter into a contract to purchase food with a bidder or offeror if the bidder's or offeror's contract terms prohibit the university from donating food to food banks, including, but not limited to, homeless shelters, food pantries, and soup kitchens. Universities shall adopt policies that permit the donation of leftover food procured with State funds, in accordance with Section 55-20 of the Code.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2060 Duration of Contracts - General

a) General

The term of a contract, including potential renewals, may not exceed 10 years.

A software license designated as a perpetual license is not considered a multi-term contract; it is instead a one-time purchase.
The length of a lease for real property or capital improvements shall be in accordance with Section 40-25 of the Code.
The length of an energy conservation program contract or energy savings contract or leases shall be in accordance with Section 25-45 of the Code and the Public University Energy Conservation Act [110 ILCS 62].
The length of a lease for State-owned dark fiber networks shall be in accordance with Section 20-60 of the Code.

b) Subject to Appropriation

Each contract is contingent upon and subject to the availability of funds. The State, at its sole option, may terminate or suspend a contract, in whole or in part and without penalty or further payment being required if the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay that obligation or if funds needed are insufficient for any reason. Each contract payable in whole or in part by any funds appropriated by the Illinois General Assembly shall recite that the contract is subject to termination and cancellation for lack or insufficiency of funding. A vendor will be notified in writing by the university of a failure or reduction or decrease of appropriation affecting a contract. This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

c) Conditions for Use of Multi-Year Contracts

A multi-year contract may be used when:

special production of definite quantities or the furnishing of long-term services is required to meet State needs; or
a multi-year contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement. The following factors are among those relevant to such a determination:

C) stabilization of the vendor's work force over a longer period of time may promote economy and consistent quality; or

D) the cost and burden of contract solicitation, award and administration of the procurement may be reduced.

d) Multi-Term Contract Procedure

The solicitation shall state:

the proposed term;
the amount of supplies or services required for the proposed contract period;
the type of pricing requested (e.g., firm for term); and
how award will be determined.

e) Renewals

The initial term of a contract plus available renewals may not exceed 10 years. When the original contract specifically calls for an initial term plus renewals, the renewals may be exercised without further procurement activity, except for the publication of the renewal in the Bulletin as required by 30 ILCS 575/8i, Section 15-25 of the Code and Section 4.1525 of this Part, and review by the PPB under Section 5-30 of the Code. The renewal terms and conditions shall not change except as provided in the contract (such as price escalations tied to an index) and as provided by in 30 ILCS 575/8i. Renewal options may be exercised by the university or by mutual agreement of the vendor, but may not be exercised solely at the option of the vendor. Except as provided by 30 ILCS 575/8i, any renewal that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to appropriate procurement procedures established by the Code and this Part.
A renewal may only be entered into if authorized by the original contract.
At least 6 months prior to exercising a renewal, a university shall review the vendor's performance to determine if good faith efforts toward meeting contract goals identified in the vendor's utilization plan are being met by the vendor. Except for construction and construction-related services, no renewal shall be authorized if the university determines good faith efforts were not exercised in meeting the contract goals agreed to in the utilization plan.
All renewals must be in conformance with the underlying contract. The procurement/contract file must contain any renewal justification form prescribed by the CPO-HE.
When a renewal will result in the total term, counting the initial term and any previous renewals, exceeding 10 years, the university's need must be procured using one of the methods of source selection authorized by the Code and this Part.
Renewals must be fully executed on or before expiration of the current contract term. If the renewal is not exercised prior to expiration of the current contract term, the supplies or services must be procured anew using one of the methods of source selection authorized by the Code and this Part.

f) Filing of Proposed Renewals and Extensions Exceeding $249,999

Prior to executing a renewal or extension with a cost estimated to exceed $249,999, the proposed renewal or extension must be submitted to the PPB. The PPB shall have up to 30 days to review and comment on the proposal. The SPO assigned to the university may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.
This subsection does not apply to any:

A) emergency procurement;

B) procurement conducted under Article 40 of the Code; or

C) procurement exempted by Sections 1-10(b), 1-12 and 1-13 of the Code.

A contract is exempt from this subsection if it is paid for in whole or in part with federal-aid funds, grants or loans and where the provisions of this subsection would result in loss of those federal funds. A university shall file notice of this exemption with the PPB prior to entering the proposed renewal or extension.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.2065 Cancellation of Contracts

a) In any of the following cases, the university shall have the right to terminate or rescind any contract entered into under this Part without penalty:

The successful vendor fails to furnish a satisfactory performance bond within the time specified.
The vendor fails to make delivery at the place or within the time specified in the contract or as ordered by the purchasing university.
Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies or services promptly.
The vendor is guilty of misrepresentation (e.g., misbranding of food or drugs) in connection with another contract for the sale of supplies or services to the State such that the vendor cannot reasonably be depended upon to fulfill obligations as a responsible vendor under other contracts with the State.
The vendor should be adjudged bankrupt; enter into receivership or make a general assignment for the benefit of creditors due to insolvency; disregard laws, rules, or instructions of the university; or act in violation of any provision of the contract; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.
Any other breach of contract or other unlawful act by the vendor, including failure to achieve contract goals agreed to in the vendor's utilization plan.
The contract was obtained by fraud, collusion, conspiracy or other unlawful means.
The contract conflicts with any statutory provision of the State of Illinois or of the United States.

b) Damages

the additional cost of supplies or services bought elsewhere;
cost of repeating the procurement procedure;
any expenses incurred because of delay in receipt of supplies or services; and
any other damages caused by the vendor's breach of contract or unlawful act.

c) Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the university may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the university for any damage resulting from termination or rescission.

d) A university shall notify the SPO of any contract that is cancelled, terminated or rescinded under this Section. The determination to terminate or rescind the contract may be used by a university or CPO-HE in future determinations of the vendor's responsibility.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2067 Contract Amendments and Change Orders

a) Contract amendments memorialize actions:

authorized by specific language in the contract (e.g., exercise of an option or showing price decrease or increase based on CPI), or changes that do not affect price or time of performance (e.g., change in names of notice contacts or number of periodic status meetings);
not specifically authorized in a contract (e.g., material changes to terms and conditions that affect price or time of performance). This type of amendment constitutes a change order.

b) Change Orders

A change order is defined in Section 4.15. Renewals, change of a vendor's name, and orders against master contracts are not change orders.
Change orders that increase or decrease the cost of a contract or an estimated contract by a total of $10,000 or more, or the time of completion by a total of 30 days or more, must be accompanied by a written determination that includes a statement that:

A) the circumstances said to necessitate the change in performance was not reasonably foreseeable at the time the contract was signed;

B) the change is germane to the original contract as signed; or

C) the change order is in the best interest of the State. [720 ILCS 5/33E-9] Universities may not divide change orders into smaller parts to avoid requirements for written determinations or publication.

A change order shall be executed by the university and vendor evidencing the change. All changes that require a written determination as provided in subsection (b)(2) shall be approved by the SPO. Change orders that exceed the small purchase limit shall be published in the Bulletin in advance of execution of the change order.
A change order to a contract for professional and artistic services made using the sole source method may not result in an increase in the amount paid under the contract by more than 5% of the initial award, or extend the contract term beyond the time reasonably needed for a competitive procurement, not to exceed two months. [30 ILCS 500/20-25(b)]
The total contract term, including the initial term, renewals, extensions and change orders shall not exceed 10 years. Any change order that would extend the total term beyond 10 years is void. Any continuing need for supplies and services must be procured using one of the methods of source selection authorized by the Code and this Part.
Prior to executing a change order with a cost estimated to exceed $249,999, the proposed change order must be submitted to PPB. PPB shall have up to 14 days to review and comment on the change order. The university may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2080 Public Procurement File

a) A procurement file shall be maintained for all contracts, regardless of the method of procurement. The procurement file shall contain the basis on which the award is made, all submitted bids and proposals, all evaluation materials, score sheets and all other documentation related to or prepared in conjunction with evaluation, negotiation and the award process. The procurement file shall contain a written determination, signed by the SPO, setting forth the reasoning for the contract award decision and any other determinations relative to the particular procurement. The publicly available portion of the procurement file shall not include trade secrets or other competitively sensitive, confidential, or proprietary information. The procurement file shall be open to public inspection within 7 calendar days following award of the contract. [30 ILCS 500/20-155(c)]

b) The procurement files shall be maintained by or under the jurisdiction of the CPO-HE.

c) Documentation of Procurement Actions

Each university, under the direction of the SPO, shall maintain in the procurement or associated contract file all substantive documents and records of communications that pertain to the procurement and any resulting contract. This shall include, as applicable, but is not limited to:

The records showing approvals to proceed at all stages;
Procurement Bulletin postings;
Solicitation document (e.g., IFB, RFP, etc.) and all amendments, clarifications and best and final requests;
Vendors' responses, including clarifications and responses to best and final requests (losing responses may be stored elsewhere);
Evaluation material (e.g., scoring guidelines and forms; completed score sheets for individual evaluators, including notes; evaluation committee's combined score sheets; evaluation committee's recommendation; and management's decision);
Documentation establishing goals for solicitations and contract awards for certified vendors (Business Enterprise for Minorities, Women, and Persons with Disabilities (BEP) Act, Veterans Business Program (VBP), and small business) including all documentation or worksheets determining the scope of work included in the goal setting, the commodity or classification codes used to establish goals, whether any exemptions were granted or denied, any determinations of a vendor's good faith effort or lack of good faith effort to meet goals, and any goal waivers granted;
Protest and resolution;
Contract and any order, change, amendments, renewal or extension;
Contractor Performance Reviews;
All information from subsections (c)(1) through (c)(6), less information exempt from disclosure under the Freedom of Information Act [5 ILCS 140] or other law (for example, the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535], which exempts contractor performance reviews), shall be prepared and made available for inspection and copying within 7 days following award of the contract. Any required contractor performance reviews shall be conducted timely and shall be made part of the procurement file prior to renewal or contract close out. The performance review shall include, but is not limited to, evaluation of whether the contract goals agreed to in a vendor's utilization plan were met. Universities shall provide the CPO-HE with notification of any vendor who does not demonstrate good faith efforts toward meeting the goals agreed to in the utilization plan. The CPO-HE and universities may consider if a vendor did not meet its goal or show good faith efforts toward meeting the goal in future determination of a vendor's responsibility. The CPO-HE will determine if any information is exempt under the Freedom of Information Act or other law.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2084 Record Retention

a) Procurement information, including, without limitation, that pertaining to the Procurement Bulletin, and performance and payment under contracts and subcontracts shall be maintained in accordance with the State Records Act [5 ILCS 160]. Books and records that relate to performance of a contract, including subcontracts, and that support amounts charged shall be maintained:

by a vendor, for three years from the date of final payment under the prime contract; and for such longer period of time as is necessary to complete ongoing or announced audits or to comply with federal requirements.
by a subcontractor for three years from the date of final payment under the subcontract or completion of the subcontract, and for such longer period of time as is necessary to complete ongoing or announced audits.

b) All contracts and subcontracts shall provide for all books and records required to be maintained by subsection (a) be available for review and audit by the Auditor General, CPO-HE, internal auditor and purchasing university.

c) Every contract and subcontract shall require the contractor and subcontractor to cooperate fully with any audit or request for information from the Auditor General, CPO-HE, internal auditor and purchasing university.

d) Failure to maintain books and records required by this Section establishes a presumption in favor of the university for the recovery of any funds paid by the university for which books and records are not available.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2086 Contract Filing

a) Filing with Comptroller

Whenever a grant, defined pursuant to accounting standards established by the State Comptroller, or a contract liability, except for contracts paid for from personal services, or contracts between the State and its employees to defer compensation in accordance with Article 24 of the Illinois Pension Code [40 ILCS 5], exceeding $20,000 is incurred by any university, a copy of the contract, purchase order, grant or lease shall be filed with the Comptroller within 30 calendar days thereafter. [30 ILCS 500/20‑80(b)]
For each State contract for supplies or services awarded on or after July 1, 2010, the contracting university shall provide the applicable rate and unit of measurement of the supplies or services on the contract obligation document as required by the Comptroller. [30 ILCS 500/20-80(b)]
Any cancellation or modification to any such contract liability shall be filed with the Comptroller within 30 calendar days after its execution. [30 ILCS 500/20-80(b)]
A contract filed with the Comptroller shall identify the method of source selection.

b) Late Filing Affidavits

When a contract, purchase order, grant or lease required to be filed with the Comptroller by this Section has not been filed within 30 calendar days after execution, the Comptroller shall refuse to issue a warrant for payment thereunder until the university files with the Comptroller the contract, purchase order, grant or lease and an affidavit, signed by the chief executive officer of the agency or his or her designee, setting forth an explanation of why the contract liability was not filed within 30 calendar days after execution. A copy of this affidavit shall be filed with the Auditor General and the CPO-HE. [30 ILCS 500/20-80(c)]

c) Timely Execution of Contracts

Except as otherwise provided by law, no voucher shall be submitted to the Comptroller for a warrant to be drawn for the payment of money from the State treasury or from other funds held by the State Treasurer on account of any contract unless the contract is reduced to writing before the services are performed and filed with the Comptroller. Contractors shall not be paid for any supplies that were received or services that were rendered before the contract was reduced to writing and signed by all the necessary parties. [30 ILCS 500/20-80(d)]
Upon written request of the university and with justification required by the CPO-HE, the CPO-HE may request an exception to Section 20-80(d) of the Code by submitting a written statement to the Comptroller and Treasurer setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services were performed. A waiver of Section 20-80 (d) of the Code must be approved by the Comptroller and Treasurer. Section 20-80 of the Code does not apply to emergency purchases if notice of the emergency purchase is filed with the PPB and published in the Bulletin as required by the Code. [30 ILCS 500/20-80(d)]
Regardless of the source of funds, contracts or change orders shall be reduced to writing before supplies are received or services are rendered. If supplies are received or services are performed prior to execution of a contract or change order, a written statement setting forth the circumstances and reasons why the contract or change order could not be reduced to writing before the supplies were received or the services were performed shall be maintained in the procurement file.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.2560 Prevailing Wage

a) Responsible Vendors

In order to be considered responsible under Section 4.2046, vendors of the following classifications of services must certify that wages to be paid to their employees are no less, and fringe benefits and working conditions of employees are not less favorable, than those prevailing in the locality where the proposed contract is to be performed:

A) Printing;

B) Janitorial cleaning services, window cleaning services, building and grounds services, site technician services, natural resources services, food services and security services having a total value of $2000 or more or $200 or more per month.

This Section does not apply to services furnished under contracts for professional or artistic services or to vocational programs of training for person with physical or mental disabilities or to qualified not-for-profit agencies for persons with significant disabilities.

b) Vendors awarded contracts or subcontracts on university public works projects shall comply with the requirements of the Prevailing Wage Act [820 ILCS 130].

c) Prevailing wages, benefits and conditions will be determined by the Illinois Department of Labor.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2565 Contracts Performed Outside the United States

a) All competitive solicitations and all contracts for services, as defined in Section 1-15.90 of the Code, shall identify where services shall be performed under that contract, including any subcontracts, and shall identify whether any services are anticipated to be performed outside the United States.

b) The CPO-HE may consider the economic impact to the State of Illinois in awarding a contract in which services may or will be performed outside of the United States.

c) If, during the term of the contract, the contractor or subcontractor shifts work outside the United States, the contractor or subcontractor shall be in breach of contract unless the CPO-HE determines in writing that termination of the contract is not in the best interest of the university.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2570 Equal Employment Opportunity; Affirmative Action

In accordance with Section 2-101(J) of the Illinois Human Rights Act (IHRA) [775 ILCS 5], the Department of Human Rights (DHR) requires certain bidders or offerors to register with DHR in order to be eligible for the award of certain public contracts. "Eligible bidder" means a person who, prior to contract award or prior to bid opening for State contracts for construction or construction-related services, has filed with DHR a properly completed, sworn and currently valid employer report form, pursuant to the DHR's regulations. [775 ILCS 5/2-101(J)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.2580 Successor Contractor

a) To be considered a responsible bidder or offeror, in all solicitations for services as defined in Section 1-15.90 of the Code, all bidders or offerors must certify that they will:

assume the collective bargaining obligations of the prior employer; and
offer employment to all current employees employed in any existing bargaining unit performing substantially similar work that will be performed by the successor contractor.

b) This Section does not apply to heating and air conditioning service contracts, plumbing service contracts, or electrical service contracts.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.3005 Construction and Construction Related Professional Services

a) General Procedures

Each contract for the construction, reconstruction, alteration, repair, improvement or maintenance of public works made by a public university shall contain a provision that steel products used or supplied in the performance of the contract or any subcontract thereto shall be manufactured or produced in the United States in accordance with the Steel Products Procurement Act [30 ILCS 565]. For example, a finished supply item that contains a steel component, such as an HVAC system, is not considered a steel product and would not be subject to the Act, but a steel I-beam would be subject to the Act. This Section does not apply:

A) When the contract involves an expenditure of less than $500.

B) When the university president certifies in writing that:

i) the specified products are not manufactured or produced in the United States in sufficient quantities to meet the university's requirements;

ii) cannot be manufactured or produced in the United States within the necessary time in sufficient quantities to meet the university's requirements; or

iii) obtaining the specified products manufactured or produced in the United States would increase the cost of the contract by more than 10%.

C) When its application is not in the public interest. [30 ILCS 565/4]

In the case of contracts for construction of buildings or for other construction work in or about buildings or grounds where the entire estimated cost of the work exceeds the amount stipulated by Section 20-20 of the Code, prospective contractors, as well as architects and engineers employed in connection with those projects may be prequalified to determine their responsibility (for architects, engineers and land surveyors, see the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535]).
Estimated Cost of Work

A) If the total estimated cost of the work exceeds the amount stipulated by Section 30-30 of the Code, separate specifications shall be prepared for all equipment, labor and materials in connection with, at a minimum, the following five subdivisions of work:

i) Plumbing.

ii) Heating, piping, refrigeration and automatic temperature control systems, including the testing and balancing of those systems.

iii) Ventilating and distribution systems for conditioned air, including the testing and balancing of those systems.

iv) Electrical wiring.

v) General contract work.

B) However, if the estimated value of the construction work exceeds $250,000 and the estimate for an individual division is less than the current small purchase limit for construction, that division's work may be combined with another division, or procured separately under the Small Purchase procedure of Section 4.2020.

The specifications shall be drawn so as to permit separate and independent competitive bidding upon each of the above five subdivisions of work. All contracts awarded for any part of the work shall award the five subdivisions separately to responsible and reliable contractors engaged in these classes of work. The contracts, at the discretion of the university, may be assigned to the successful bidder on the general contract work or to the successful bidder on the subdivision of work designated by the university prior to bidding as the prime subdivision of work, with the provision that all payments will be made directly to the contractors for the five subdivisions upon compliance with the conditions of the contract. Any contract may be awarded for one or more buildings in any project to the same contractor. Specifications shall require, however, that, unless the buildings are identical, a separate price shall be submitted for each building. The contract may be awarded to the lowest responsible bidder for all of the buildings included in the specifications.

b) Request for Payment Form Specified by the University

To bill the university for construction work done, the vendor must submit a payment request in the form specified by the university.

c) Periodic Payments

When provided in the contract, periodic payments can be made during the course of the work, provided a licensed architect or engineer issues a certificate indicating the proportionate amount of the total work has been completed satisfactorily.

d) Retained Percentage

When periodic payments are made and if specified in the contract, the university shall retain a fixed percentage of the contract price to insure faithful completion of the contract.

e) Additional Work

No amount of funds, in addition to those provided for in a construction contract, may be obligated or expended unless the additional work to be performed or materials to be furnished are germane to the original contract.
Even if germane to the original contract, no additional expenditures or obligations may, in their total combined amount, be in excess of the percentage of the original contract amount as provided in Section 30-35(b) of the Code unless they have received the prior written approval of the university construction agency.
In the event that the total of the combined additional expenditures or obligations exceeds the percentages of the original contract amount set forth in Section 30-35(b) of the Code, the university construction agency shall investigate all the additional expenditures or obligations in excess of the original contract amount and shall in writing approve or disapprove subsequent expenditures or obligations and state in detail the reasons for the approval or disapproval.
Change orders that increase or decrease the cost of a contract by a total of $10,000 or more or the time for completion by a total of 30 days or more shall be in writing and contain the appropriate authorization from the university and SPO. Vendors shall not perform any changed work prior to authorization from the university.
Notices of additional expenditures or obligations in excess of the small purchase limit of Section 20-20 of the Code shall be published in the Bulletin.

f) Improvements to Leased Real Estate

The procedures set forth in this Part shall apply, as appropriate, to contracts for improvements to real estate leased to the university.

g) Construction Manager Services

Procurement of Construction Manager Services, under the jurisdiction of the Capital Development Board, will be performed by the Capital Development Board (CDB) or through delegation from CDB.
Construction Manager Services for projects not under the jurisdiction of CDB shall be procured by the university in accordance with Article 33 of the Code or applicable law.

h) Architect, Engineer and Land Surveying Contracts. Solicitations for the procurement of architecture, engineering and land surveying service professionals shall be in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 500/535], the Illinois Procurement Code and this Part.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.4005 Real Property Leases and Capital Improvement Leases

Real property leases and capital improvement leases are subject to, and shall be procured in accordance with, the Code and this Part.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.4010 Authority

SPOs shall have the authority to procure leases. Universities will establish standards and criteria for leased space and space assignment to meet the financial and administrative objectives to most efficiently and effectively provide adequate space to operate the university in accordance with its mission.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.4015 Method of Source Selection

a) Leases shall be procured by using a Request for Information for Real Property or Capital Improvement Leases (RFI-RPL) process except as provided in subsection (b).

b) Leases acquired under these exceptions shall be selected and entered into by negotiation. Written summaries of all negotiations shall be maintained in lease files.

Property of less than 10,000 square feet with rent of less than $100,000 per year.
Duration of less than one year that cannot be renewed.
Specialized space available at only one location. Specialized space is defined as space of unique function or configuration, not generally available on the market on an as built or turnkey basis. Examples of specialized space include, but are not limited to: laboratories, vehicle testing stations, correctional facilities, medical facilities, boat docks and evidence storage facilities.
Renewal or extension of a lease, provided that:

A) the CPO-HE determines in writing that the renewal or extension is in the best interest of the university;

B) the CPO-HE submits his or her written determination and the renewal or extension to the PPB;

C) the PPB does not object in writing to the renewal or extension within 30 days after its submission; and

D) the CPO-HE or designee publishes notice of the renewal or extension in the Bulletin.

Leases with other governmental units may be negotiated without using the RFI-Real Property Leases process when deemed by the CPO-HE to be in the best interest of the university. [30 ILCS 500/40-15(c)]

c) None of the provisions of subsection (b) shall prohibit making a lease procurement under the RFI-RPL provisions if the CPO-HE deems it to be in the best interests of the university.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.4020 Rfi-Rpl Process

a) RFI-Real Property Leases (RFI-RPL) Form

When required, an RFI-RPL shall be issued and shall include the following:

the type of property to be leased;
the proposed uses of the property;
the duration of the lease;
the preferred location of the property;
a general description of the configuration desired; [30 ILCS 500/40-20(b)]
special and standard lease terms and conditions, qualifications and responsibility requirements, disclosures and certifications;
the address to which responses are to be sent;
the criteria for evaluating responses based on the minimum standards and conditions for occupancy;
response forms and instructions for completing forms;
a copy of spatial and performance guidelines required to meet the needs of the university to occupy the real property being procured; and
the date and time of responses.

b) The university shall prepare the RFI-RPL for submission to the SPO for approval.

c) Public Notice

Public notice of the RFI-RPL shall be published in the Bulletin at least 14 days before the date set forth in the request for receipt of responses and shall also be published in similar manner in a newspaper of general circulation in the community or communities where the university is seeking space. [30 ILCS 500/40-20(c)] All required documents of the RFI-RPL will be available in electronic format on the Bulletin. Notice shall begin when first published electronically. RFI-RPL document packages may also be mailed to owners of property that may meet the university's needs after the RFI-RPL has been published in the Bulletin.

d) Response

The RFI-RPL response shall consist of written information sufficient to show that the respondent can meet minimum criteria set forth in the RFI-RPL. [30 ILCS 500/40-20(d)] All responses to the RFI-RPL will be publicly opened on the announced date. Names of all parties submitting proposals will be made available to the public immediately following the opening of the proposals.

e) Negotiation and Determination

The SPO may enter into discussions with respondents to the RFI-RPL for the purpose of clarifying university needs and the information supplied by the respondents. On the basis of the information supplied and discussions, if any, the SPO shall make a written determination identifying the responses that meet the minimum criteria set forth in the RFI-RPL. Negotiations shall be entered into with all qualified respondents for the purpose of securing a lease that is in the best interest of the State. [30 ILCS 500/40-20(d)] Site visits may be made as part of the discussion and/or negotiation process. The university shall document negotiation efforts with each qualified respondent.
The CPO-HE or SPO reserves the right to reject any proposals and to request and evaluate "best and final" proposals. Best and final offers shall be sought after a written determination is made by the SPO that it is in the best interest of the State to request best and final proposals. A best and final proposal shall not be requested from any vendor deemed non-responsive or who does not meet the minimum criteria set forth in the RFI-RPL.

f) Contract Award, Reporting and Filing

The SPO shall review all relevant information and shall recommend to the CPO-HE which proposal shall be accepted based on the evaluation of all responsive proposals. The CPO-HE shall make the final award, which will be published in the Bulletin. Notification of award will be sent to all respondents.
When the lowest response by price is selected, a written report of the negotiation shall be retained in the lease files and shall include the reasons for the final selection.
When the lowest response by price is not recommended, the SPO shall forward to the CPO-HE, along with the lease, notice of the identity of the lowest respondent by price and written reasons for the recommendation of a different response. The CPO-HE shall publish the written reasons for the selection in the next volume of the Bulletin. [30 ILCS 500/40-20(d)] The written reasons for the selection of the vendor shall be retained in the lease files.

g) PPB Review

The PPB shall review any proposed lease of real property of more than 10,000 square feet or any proposed lease of real property with annual rent payments of $100,000 or more. The PPB shall have 30 days to review the proposed lease. No contract may be entered into until the 30-day period has expired, unless the university requests in writing that the PPB waive the period and the PPB grants the waiver in writing. If the PPB does not object within 30 days, the proposed lease shall become effective. [30 ILCS 500/40-20(e)]

h) University Cooperation

A university shall provide any materials or provide any assistance the PPB determines is required for its review. The PPB may request in writing from the university, and the university shall promptly, but in no event later than 5 business days after receipt of the request, provide to the PPB documentation of information in the possession of the university. This does not preclude the university seeking any other available relief including termination for breach.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.4025 Lease Requirements

a) Length of Leases

Maximum Term. Except when a longer term is authorized by law, leases, inclusive of renewals, shall be for a term not to exceed 10 years and shall include a termination option in favor of the State after 5 years. A lease for real property owned by the University of Illinois for use by the University of Illinois at Chicago for an ambulatory surgical center, which may include clinical and retail services, may be for a term not to exceed 30 years when:

A) The lease requires the lessor to make capital improvements of $100,000 or more; and

B) The Board of Trustees of the University of Illinois determines a term of more than 10 years is necessary and in the best interests of the University.

Renewal Option. Leases may include a renewal option. An option to renew may be exercised only when the CPO-HE determines in writing that renewal is in the best interest of the State. The CPO-HE shall publish a notice of the intent to exercise the option in the Bulletin at least 60 days prior to the exercise of the option. [30 ILCS 500/40-25(b)] For purposes of this Section, "exercise" means the date of notification to the lessor to renew or extend the lease.
All leases shall include a provision that they are subject to termination and cancellation in any year the General Assembly fails to make an appropriation to make payments under the terms of the lease. [30 ILCS 500/40-25(c)]
Holdover. No lease may continue on a month-to-month or other holdover basis for a total of more than 6 months after expiration of the underlying lease. [30 ILCS 500/40-25(d)]

b) Lessor's Failure to Make Improvements

Each lease must provide for actual or liquidated damages upon the lessor's failure to make improvements agreed upon in the lease. The actual or liquidated damages shall consist of a reduction in lease payments equal to the corresponding percentage of the improvement value to the lease value. The actual or liquidated damages shall continue until the lessor complies with the lease and the improvements are certified by the CPO-HE and the leasing university. [30 ILCS 500/40-55] The penalty amount shall be retained by the university. This does not preclude the university seeking any other available relief, including termination for breach.

c) All leases shall be accompanied by a full written disclosure of the identity of every owner and beneficiary having any interest in the premises being leased.

The disclosure shall be subscribed and sworn or otherwise affirmed on oath by an owner, authorized trustee, corporate official, partner, managing agent or other authorized person.
The disclosure shall set forth all ownership interests. By way of example, the disclosure should identify the names of the beneficiaries of a land trust in addition to the trustee, the names of all partners whether general or limited in nature, the names of all members or managers of a limited liability company and the names of all shareholders in a corporation who are entitled to receive more than 7½% of the total distributable income of the entity. If the entity is publicly traded and no readily known individual owns more than a 7½% interest, then the requirements of this subsection (c) may be met by an officer or managing agent of the entity making an affirmative statement to this effect under oath.
The disclosure shall set forth the identity of any State officer, employee or elected official, or the wife, husband, or minor child of that person having an ownership or beneficial interest under the lease. In the event a person is so set forth, the disclosure shall include a specific designation of the percentage of the total distributable income to that person, together with that of the wife, husband or minor child of the person, is entitled to receive from any firm, partnership, association or corporation that is the lessor.
It shall be the responsibility of the lessor to notify the CPO-HE, SPO or designee of any changes in ownership or beneficial interest and to submit updated disclosure statements reflecting the changes within 30 days after the change.

Each RFI will contain specifications for accessibility. Exceptions to the specifications will be allowed only upon request of the university if legitimate reasons are given and the request is otherwise in compliance with all federal and State laws regarding accessibility. The CPO-HE, SPO or designee may waive certain specifications at his or her discretion in accordance with subsection (d)(2).
Exceptions may be based upon one or more of the following criteria:

A) No other suitable location exists within the geographic boundaries required by the operation/program at the site.

B) No funds are appropriated to cover expenses for:

i) Relocation to an accessible site;

ii) Remodeling existing site to achieve accessibility; or

iii) Construction of a new facility.

The operations at the site are part of an on-going program that cannot be interrupted or terminated pending relocation, remodeling or new construction.
The operations at the site are part of a new program that must be implemented without delay to avoid:

A) Delay or interruption of vital services; and/or

B) Loss of funds associated with the program

The operations/programs at the site:

A) Generate a low frequency of public use; and/or

B) Provide a low number of job opportunities.

For sites carrying out programs funded in whole or part by federal funds, exceptions will be granted only upon written certification from the university that alternative methods have been established to deliver services to disabled clients and the university will provide necessary structural modification for qualified disabled employees, unless the modification would cause the university to incur undue hardship. This requirement is based on federal law (section 504 of the Rehabilitation Act of 1973 (29 USC 706)) and any federal regulations promulgated in accordance with that Act, including those promulgated by the U.S. Department of Health and Human Services.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4030 Purchase Option

Leases of all space in entire, free-standing buildings shall include an option to purchase exercisable by the university, unless the CPO-HE or SPO determines in writing that inclusion of that purchase option is not in the State's best interest. The determination, including the reasons for making that determination, shall be published in the Bulletin. Leases with governmental units and not-for-profit entities are exempt from the requirements of this Section.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4035 Rent Without Occupancy

Except when deemed by the PPB to be in the best interest of the university, no university may incur rental obligations before having occupancy or possession of the space rented. For the purposes of this Section, the terms "occupancy" and "possession" shall have the same meaning.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.4040 Local Site Preferences

Upon the request of the chief executive officer of a unit of local government, leasing preferences may be given to sites located in enterprise zones, tax increment districts, or redevelopment districts.

44 Ill. Adm. Code 4.4042 Historic Area Preference

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.4044 Emergency Lease Procurement

Emergency lease procurements may be made pursuant to Section 4.2030.

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.4505 Procurement Preferences

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts. The Bulletin and solicitation document shall state whether a preference applies or may apply and the amount or type of preference. In the event multiple preferences are applicable, the order preferences shall be applied will be determined by lot.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4510 Resident Bidder and Offeror Preference

b) In breaking a tie bid or proposal as described in Section 4.2037, an Illinois resident vendor shall be given the award.

c) An Illinois resident vendor shall be allowed a preference as against a non-resident vendor equal to any in-state vendor preference given or required by the state of the non-resident vendor.

d) If only non-resident bidders or offerors are responding, the university has the right to specify that Illinois labor and manufacturing locations be used as part of the manufacturing process. This specification may be negotiated as part of the solicitation process.

e) This Section does not apply to any contract for any project for which federal funds are available for expenditure when its provisions may be in conflict with federal law or federal regulation.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4515 Soybean Oil-Based Ink and Vegetable Oil-Based Ink

a) Contracts requiring the procurement of offset printing services shall specify the use of soybean oil-based ink or vegetable oil-based ink unless a State Purchasing Officer determines that another type of ink is required to assure high quality and reasonable pricing of the printed product. [30 ILCS 500/45-15] The SPO will make this determination based on justification submitted by the university.

b) This preference does not apply when a university requires digital printing services, a printing method that includes, but is not limited to, the electrostatic process of transferring ink or toner to a substrate and that may use photo imaging plates, photoreceptor drums, or belts that hold an electrostatic charge. Digital printing also includes the process of transferring ink through a print head directly to a substrate, such as ink-jet printers.

c) Offset printing includes lithography, flexography, gravure or letterpress and involves the process of transferring ink through static or fixed image plates using an impact method of pressing ink into a substrate.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.4520 Recycled Supplies

When a public contract is to be awarded to the lowest responsible bidder or offeror, an otherwise qualified bidder or offeror who will fulfill the contract through the use of products made of recycled supplies shall be given preference over other bidders or offerors unable to do so, provided that the cost included in the bid of supplies is equal or less than other bids or offers, unless the use of the product constitutes an undue practical hardship. Nothing in this Section shall be construed to apply to a construction agency for the purposes of procuring construction and construction-related services. [30 ILCS 500/45-20] The SPO will make this determination based on justification submitted by the university.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4525 Recyclable Supplies (paper)

All paper supplies purchased for use by universities must be recyclable paper unless a recyclable substitute cannot be used to meet the requirements of the universities or would constitute an undue economic or practical hardship. [30 ILCS 500/45-25] Universities shall make this determination and shall include this determination in the procurement file.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4526 Environmentally Preferable Procurement

Universities shall contract for supplies and services that are environmentally preferable, as that term is defined in Section 45-26(3) of the Code. If, however, contracting for an environmentally preferable supply or service would impose an undue economic or practical hardship on the contracting university, or if an environmentally preferable supply or service cannot be used to meet the requirements of the university, then the university need not contract for an environmentally preferable supply or service. Specifications for contracts, at the discretion of the contracting university, may include a price preference of up to 10% for environmentally preferable supplies or services. [30 ILCS 500/45-26(b)] Universities shall make this determination and shall include this determination in the procurement file.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.4530 Correctional Industries

The CPO-HE shall distribute to each SPO and university the list of items in accordance with Section 45-30 of the Code that must be purchased from Illinois Correctional Industries (ICI) as determined by the CPO-HE. Procurements from ICI may be made without prior notice or competition. Notice of contracts that exceed the small purchase threshold will be published in the Bulletin prior to execution of the contract.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4535 Qualified Not-for-Profit Agencies for Persons with Significant Disabilities

a) Contracts issued under this Section with qualified not-for-profit agencies for persons with significant disabilities should promote employment and training opportunities for persons with significant disabilities while meeting the needs of the university. "Qualified Not-for-Profit Agencies" are certified work centers or accredited vocational programs as defined in Section 45-35(a) of the Code.

Subject to the requirements of this Section, a university may procure supplies and services from a qualified not-for-profit agency and may do so without having to provide prior notice on the Bulletin or having to seek competition. The qualified not-for-profit agency must meet the specifications and needs of the using university and must agree to a fair and reasonable price.
Except for small purchases, a proposed contract with a qualified not-for-profit agency must be approved by the SPO.

b) The university and the State Use program (see Section 45-35(c) of the Code) staff will consult as necessary to ensure the contract effectively addresses the purpose of the program. This review may include consideration of the total dollar value of the contract, the number of jobs performed by persons with significant disabilities, the amounts paid to those individuals and the amount of subcontracting, particularly with commercial entities, needed to fulfill contract requirements.

c) The CPO-HE shall distribute to each SPO and university a list of supplies and services available from qualified not-for-profit agencies on the list maintained by the Department of Central Management Services.

d) The CPO-HE shall identify to each SPO and university the supplies and services for which preference must be given to a qualified not-for-profit agency. The preference shall require the university to give first refusal to a qualified not-for-profit agencies and the university shall purchase from the not-for-profit agencies unless the SPO approves a request for a waiver from the university. A waiver may be requested if the university demonstrates to the SPO that factors including, but not limited to, geographic proximity, lack of availability of vendors, quality of product and price preclude purchase from a qualified not-for-profit agencies. Any waiver request shall be on a form or in a format prescribed by the CPO-HE.

e) When a qualified not-for profit agency and a university enter a contract, each must comply with applicable provisions of the Code.

f) State Use Committee

Prior to contracting with a qualified not-for-profit agency, the State Use Committee must determine in an open meeting that the price is fair and reasonable. If any vendor protests the determination as a part of the open meeting, the Committee must resolve the protest before approving the proposed contract. The State Use Committee shall inform the SPO and the university in writing of its determination.
Prior to a qualified not-for-profit agency entering a subcontract or executing a change order, the State Use Committee must approve in an open meeting all subcontracts and must approve all change orders that exceed the competitive threshold.

A) For purposes of this Section only, subcontract means any acquisition from another source of supplies, not including raw materials, or services required by a qualified not-for-profit agency to provide the supplies or services that are the subject of the contract between the State and the qualified not-for-profit agency. [30 ILCS 500/45-35(e)]

B) The State Use Committee shall inform the SPO and the university in writing of its approval.

After receipt of the Committee's determination or approval, the SPO shall post notice to the Bulletin of any proposed contract or change order that exceeds the competitive threshold. The university may execute the contract or change order upon publication.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4540 Gas Mileage, Flex-Fuel, Biodiesel and Hybrid Requirements

Sections 25-75 and 45-40 of the Illinois Procurement Code impose requirements applicable to the purchase and, in some situations, the lease of passenger vehicles. These requirements are:

a) Section 25-75 (Flex Fuel, Hybrid or Biodiesel)

Gasoline Power. All gasoline powered automobiles and light trucks purchased with State funds must be flexible fuel or fuel efficient hybrid vehicles. Station wagons, SUVs and crossovers, vans (including mini-vans), four-wheel drive (including AWD) vehicles, emergency vehicles, and police and fire vehicles are not exempt.

A) Flexible fuel vehicles are automobiles or light trucks that operate on either gasoline or E-85 (85% ethanol, 15% gasoline) fuel.

B) Fuel efficient hybrid vehicles are automobiles or light trucks that use a gasoline or diesel engine and an electric motor to power and gain a minimum of 20% increase in combined USEPA city/highway fuel economy over an equivalent or most-similar conventionally-powered model.

Diesel Power. All diesel powered automobiles and light trucks purchased with State funds shall be certified by the manufacturer to run on 5% biodiesel (B5) fuel. Station wagons (including SUVs and crossovers), vans (including mini-vans), four-wheel drive (including AWD) vehicles, emergency vehicles, and police and fire vehicles are not exempt.
"State funds" means, for the purpose of this Section, any funds appropriated by the General Assembly. If State funds are used in whole or in part to purchase these vehicles, this Section applies.

b) Section 45-40 (Mileage)

Any new passenger automobiles, whether purchased or leased, must meet minimum fuel mileage standards. This does not apply to station wagons, SUVs and crossovers, vans (including mini-vans), four-wheel drive (including AWD) vehicles, emergency vehicles, and police and fire vehicles.
This fuel mileage requirement applies regardless of the source of funds used to purchase or lease the vehicle.

c) Coordination of Sections 25-75 and 45-40. When procuring a vehicle, a university shall make reasonable attempts to identify one that meets the requirements of both subsections (a) and (b). If no vehicle meets both of these requirements, the university shall purchase a vehicle or vehicles that satisfy the requirements of subsection (b); otherwise, the university may request a waiver as outlined in subsection (d).

d) Waiver. If a vehicle that meets the need of the institution cannot meet either or both requirements of subsections (a) and/or (b), then the institution may request a waiver of the appropriate requirement. The CPO-HE may require use of a uniform form or format for requesting the waiver. Vehicles requested under a waiver should come as close to satisfying the waived requirement as practical.

e) Beginning January 1, 2016, 15% of all passenger vehicles purchased with State funds shall be vehicles fueled by electricity, electricity and gasohol (hybrids or plug-in hybrids), compressed natural gas, liquid petroleum gas, or liquid natural gas, including dedicated or non-dedicated fuel type vehicles. For purposes of this Section, "State funds" means any funds appropriated by the General Assembly. If State funds are used in whole or in part to purchase these vehicles, this Section applies.

f) In awarding contracts requiring the procurement of vehicles, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of vehicles powered by ethanol produced from Illinois corn or biodiesel fuels produced from Illinois soybeans. [30 ILCS 500/45-60]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.4545 Small Businesses

a) Authority to Establish Small Business Set-Aside

The CPO-HE, in consultation with the universities, may determine categories of construction, supplies or service procurements that will be set aside for small businesses in Illinois. A set-aside designation shall be for a stated period of time. An SPO, in consultation with a university, may determine to set aside for small business individual contracts not in a set-aside category. A set-aside may be established for competitive solicitations or for small purchases.

b) Certified Small Business List

The CPO-HE, in consultation with the universities, may develop its own list, or may use a list maintained by another CPO, of vendors that meet the criteria of small business.

c) Contract Set-Aside

Any procurement proposed for set-aside to small businesses shall be so identified in the Bulletin notice and the solicitation documents. Bids or proposals received from large businesses will be rejected as nonresponsive. Vendors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses must be certified as a small business by one or more CPOs or shall submit information as specified verifying that the vendor qualifies as a small business under this Part. A business that fits the definition of small on the day of award or proposal opening will be considered small for the duration of the contract.
When conducting a small purchase in a set-aside category, the university shall consult the list of certified small businesses and shall solicit at least three vendors under the commodity codes or classifications representing the supplies or services being solicited. Vendors outside a reasonable geographic area need not be contacted.
The SPO may waive the requirement for set-aside on individual transactions based upon a request from the university that a set-aside is not conducive to meeting its need.
Withdrawal of Set-Aside

d) Criteria for Small Business

Unless the CPO-HE provides a definition for a particular procurement that reflects industrial characteristics, a small business is a business that is independently owned and operated and is not dominant in its field of operation.

A) A wholesale business is a small business if its annual sales for its most recently completed fiscal year do not exceed $13,000,000.

B) A retail business or business selling services is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $8,000,000.

D) A construction business is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $14,000,000.

E) If a business is any combination of retailer, wholesaler or construction business, then the annual sales for each component may not exceed the higher of $13,000,000 for a wholesaler, $8,000,000 for a retailer, $14,000,000 for a construction business or the amounts shown in Section 45-45 of the Code. For example, a business that is both a retailer and a wholesaler may not have total sales exceeding $21,000,000 and the retail component may not exceed $8,000,000 and the wholesale component may not exceed $13,000,000. If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed 250.

A small business in Illinois is defined as a company that meets the criteria in subsection (e)(1) and is a sole proprietor whose primary residence is in Illinois or is a business incorporated or organized as a domestic corporation under the Business Corporation Act of 1983 [805 ILCS 5/1.80], is a business organized as a domestic limited liability company under the Limited Liability Company Act [805 ILCS 180], is a business organized as a domestic partnership under the Uniform Partnership Act of 1997 [805 ILCS 206], or a business organized as a domestic limited partnership under the Uniform Limited Partnership Act of 2001 [805 ILCS 215].
A small business that is not dominant in its field of operations means the business does not exercise a controlling or major influence in the kind of business activity in which it is engaged. In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
Businesses artificially divided to qualify as small business will be disallowed. When computing the size status of a vendor and whether the vendor qualifies as a small business, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates, concerns and related entities shall be included. Concerns and related entities are affiliates of each other when one directly or indirectly controls or has the power to control the other, or when a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists. In determining whether concerns and related entities are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management, identity of interest (substantially identical business or economic interests such as family members, individuals or firms with common investments, or firms that are economically dependent through contractual or other relationships) and contractual arrangements. In determining whether affiliation exists, the CPO-HE will consider the totality of the circumstances, and may find affiliation even though no single factor is sufficient to constitute affiliation. A franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

e) Small Business Specialist

The CPO-HE shall designate a small business specialist, who shall have the duties set forth in Section 45-45(e) and (f) of the Code, and who shall also act as coordinator of small business. The designated small business specialist shall compile statistics provided by the university needed to make the small business annual report to the General Assembly required under Section 45-45(f) of the Code.
The small business specialist shall provide written instruction to any business registered as a small business in accordance with Section 45-45 of the Code on how to register for the Public Higher Education Bulletin. Notice shall be provided within 30 days after the small business certification.

f) Small Business Contracts

Goal

A) It is the goal of the State of Illinois to award not less than 10% of the total dollar amount of State contracts to small businesses.

B) Small businesses are defined as those businesses meeting the criteria established in Section 45-45 of the Code and subsection (d) of this Section.

Goal Measurement

A) The goal shall be measured on a full fiscal year basis.

B) Each university's expenditures, whether against contracts established by the university or against contracts established on behalf of a university, shall be included in the university's goal attainment statistics.

C) A university may satisfy its goal, in whole or in part, by counting expenditures made by State vendors to subcontractors that are small businesses.

University Compliance Plans

A) Each university shall submit an annual compliance plan of how it intends to reach its goal and a timetable for reaching its goal. The CPO-HE shall establish the format and timetable for submission of the compliance plan. The CPO-HE shall approve the plan if it meets the requirements of the Code and this Part.

B) Each university shall submit an annual utilization report of small business contracts during the preceding fiscal year, including lapse period spending and a mid-fiscal year utilization report. The CPO-HE shall establish the format and timetable for submission of the utilization report.

C) The CPO-HE or small business specialist appointed under Section 45-45 of the Code may recommend ways in which a university may reach its goal. Upon a finding by the CPO-HE that a university's compliance plan is insufficient to reach the university's goal, the CPO-HE shall recommend ways in which a university can reach its goal. Those recommendations may include, but are not be limited to:

i) using stronger and better focused solicitation efforts to obtain more small businesses as potential sources of supply;

ii) division of job or project requirements, when economically feasible, into smaller, more manageable, tasks or quantities;

iii) elimination of extended experience or capitalization requirements when programmatically feasible; and

iv) identification of specific proposed contracts as particularly attractive or appropriate for participation by small businesses.

D) If the compliance plans or utilization reports indicate a university's goal will not be reached, the CPO-HE may request that the university explain the university's noncompliance. If the CPO-HE determines a university is not making a serious effort to reach the goal, the CPO-HE will prepare a report for submission to the Governor and General Assembly with recommendations for remedial action.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4550 Illinois Agricultural Products

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.4555 Corn-Based Plastic Products

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.4557 Veterans and Service-Disabled Veterans

In furtherance of the goal established by Section 45-57 of the Code, the CPO may make available information regarding the availability of small businesses owned by veterans and service-disabled veterans to the universities and to other vendors interested in doing business with the universities.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.4570 Contracting with Businesses Owned and Controlled by Minorities, Women, and Persons with Disabilities

Procurements made under the Code are subject to the requirements of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575]. Each university is responsible for establishing goals and taking other action in accordance with the Act, such as ensuring specifications are written to minimize barriers to participation and that diverse vendors are included in solicitation outreach and training. Each solicitation conducted by a university, regardless of the source selection method, shall take into account the goals and policies set forth in the Act and any other laws of the State.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.4575 Domestic Products

a) This Section applies unless an exception is provided by statute or, in the case of a small, emergency or sole economically feasible source situation.

b) This Section applies to supplies purchased by the university that have undergone some manufacturing process that changes the raw material or components into a different product. The following examples show how to interpret this Section:

If the university needs grain, this Section would not apply because the university would be asking for a raw material.
If the university needs flour, the purchase would be subject to this Section as the flour was subject to a manufacturing process. The grain used in manufacturing the flour would not be subject to any domestic restriction.
If the university needs bread, the bread would be subject to this Section. The grain and flour used in creating the bread would not be subject to any domestic restriction.
An item assembled domestically with components manufactured in another country is still considered a domestic product.

c) Specifications for manufactured supplies shall include a reference to the preference established in this Section.

d) The preference shall be as follows:

The low bid or most advantageous proposal shall be identified without regard to whether the product is a domestic product.
In the event of a tie in a competitive sealed bid procurement, the vendor that certifies it will provide domestic supplies shall be given preference.
If the low bid or most advantageous proposal does not contain a certification that the supply items are domestic, then any responsive and responsible vendor that is within 2% of the identified vendor's price that has made that certification shall be evaluated as though its price was 2% lower, subject to a maximum dollar value of $50,000.
The winning vendor will be determined after application of the preference.
Notwithstanding the preference outlined in this subsection (d), if the appropriate SPO determines that the price differential calculated using the preference is not acceptable given the particular procurement and the economic circumstances, the award may be conditioned on receipt of an acceptable price reduction. If the price cannot be reduced to an acceptable level, the original low priced or most advantageous proposal may be selected for award.

e) Each procuring university shall include in the procurement file documentation showing the application of any preference given and any determination that the preference was not subject to the Procurement of Domestic Products Act [30 ILCS 517].

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.4578 Bio-Based Products

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.4579 Notice of Preferences (repealed)

History

Source: Repealed at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.4595 Hubzone Business Contracts

a) This Section applies unless an exception is provided by statute or, in the case of a small, emergency or sole economically feasible source procurement.

b) Specifications shall include a reference to the preference established in this Section.

c) The preference shall be as follows:

The low bid or most advantageous proposal shall be identified without regard to whether the vendor is a qualified HUBZone small business concern.
If the low bid or most advantageous proposal does not contain a certification that the vendor is a qualified HUBZone small business concern, then any responsive and responsible vendor that has made that certification and is within 2% of the low bid or most advantageous proposal's price shall be evaluated as though its price was 2% lower, subject to a maximum dollar value of $50,000.
The winning vendor will be determined after application of the preference.
Notwithstanding the preference outlined in this subsection (c), if the appropriate SPO determines that the price differential calculated using the preference is not acceptable given the particular procurement and the economic circumstances, the award may be conditioned on receipt of an acceptable price reduction. If the price cannot be reduced to an acceptable level, the original low priced or most advantageous proposal may be selected for award.

d) Prior to making any award to a qualified HUBZone small business concern that includes a price preference, the CPO-HE or SPO shall verify the HUBZone business is qualified with the U.S. Small Business Administration at the time the bid is due and at the time of award of the contract in accordance with 13 CFR 126.

e) This Section does not apply to construction, construction-related services, or the selection of construction-related professional services procurements.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5002 Continuing Disclosures; False Certification

b) The CPO-HE may prescribe a standard format for certification and may include certifications as part of a prequalification process.

c) Should a vendor be unable to certify that it continues to meet requirements of Article 50 of the Code, the relevant information shall be submitted to the SPO for review and disposition.

d) Annual certification through the vendor portal in accordance with Section 4.1535 satisfies the requirements of this Section.

e) No continuing certification is required if a contractor or subcontractor continues to meet all of the requirements of Article 50 of the Code or if the work under the contract or subcontract is substantially completed.

f) In addition to any other penalties or consequences described by law, a contractor or subcontractor that makes a false statement material to any given certification is subject to liability under the Illinois False Claims Act [740 ILCS 175] for submission of a false claim.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5005 Bribery

a) Prohibition

No person or business shall be awarded a contract or subcontract who:

Has been convicted under the laws of Illinois or any other state of bribery or attempting to bribe an officer or employee of the State of Illinois or any other state in that officer's or employee's official capacity; or
Has made an admission of guilt of that conduct that is a matter of record but has not been prosecuted for that conduct. [30 ILCS 500/50-5(a)]

b) Businesses

The business has been finally adjudicated not guilty; or
The business demonstrates to the governmental entity with which it seeks to contract, or that is a signatory to the contract to which the subcontract relates, and that entity finds that the commission of the offense was not authorized, requested, commanded or performed by a director, officer or high managerial agent on behalf of the business, as provided in Section 5-4(a)(2) of the Criminal Code of 2012 [720 ILCS 5]. [30 ILCS 500/50-5(b)]

c) Conduct on Behalf of Business

d) Certification

Every bid or offer submitted to every contract executed by the State, every subcontract subject to Section 20-120 of the Code, and every vendor's submission to a vendor portal shall contain a certification by the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-5 of the Code, and acknowledges that the CPO-HE may declare the related contract void if any certifications required by that Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. A contractor or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony. [30 ILCS 500/50-5(d)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5009 Felons

a) Unless otherwise provided, no person or business convicted of a felony shall do business with the State of Illinois or any university, or enter into a subcontract, from the date of conviction until 5 years after the date of completion of the sentence for that felony, unless no person held responsible by a prosecutorial office for the facts upon which the conviction was based continues to have any involvement with the business. [30 ILCS 500/50-10]

b) Every bid or offer submitted to the State, every contract executed by the State, every subcontract subject to Section 20-120 of the Code, and every vendor's submission to a vendor portal shall contain a certification by the bidder, offeror, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-10.5 of the Code and acknowledges the CPO-HE may declare the related contract void if any of the certifications required by that Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-10.5(b)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5010 Prohibited Bidders and Contractors

a) Unless otherwise provided, no business shall bid, offer, enter into a contract or subcontract under the Code, or make a submission to a vendor portal if the business or any officer, director, partner or other managerial agent of the business has been convicted of a felony under the Sarbanes-Oxley Act of 2002 (PL 107-204) or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 [815 ILCS 5] for a period of 5 years from the date of conviction. [30 ILCS 500/50-10.5(a)]

b) Every bid and offer submitted to the State, every contract executed by the State, every vendor's submission to a vendor portal, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under Section 50-10.5 of the Code and acknowledges that the CPO-HE shall declare the related contract void if any of the certifications completed pursuant to Section 50-10.5(b) of the Code are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-10.5(b)]

c) If a business is not a natural person, the prohibition in subsection (a) applies only if:

the business itself is convicted of a felony referenced in subsection (a); or
the business is ordered to pay punitive damages based on the conduct of any officer, director, partner, or other managerial agent who has been convicted of a felony referenced in subsection (a). [30 ILCS 500/50-10.5(c)]

d) A natural person who is convicted of a felony referenced in subsection (a) remains subject to Section 50-10 of the Code. [30 ILCS 500/50-10.5(d)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5011 Debt Delinquency

a) No person shall submit a bid or offer for or enter into a contract or subcontract under this Code, or make a submission to a vendor portal if that person knows or should know that he or she or any affiliate is delinquent in the payment of any debt to the State, unless the person or affiliate has entered into a deferred payment plan to pay off the debt. [30 ILCS 500/50-11(a)] For purposes of this Section, terms shall have the meanings ascribed in Section 50-11 of the Code.

b) Every bid and offer submitted to the State, every vendor's submission to a vendor portal, every contract executed by the State, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the contractor or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor or subcontractor and its affiliate is not barred from being awarded a contract or subcontract under this Section and acknowledges that the CPO-HE may declare the related contract void if any of the certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 50-11(b)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5012 Collection and Remittance of Illinois Use Tax

a) No person shall enter into a contract with a university or enter into a subcontract unless the person and all affiliates of the person collect and remit Illinois Use Tax on all sales of tangible personal property into the State of Illinois in accordance with the provisions of the Illinois Use Tax Act [35 ILCS 105], regardless of whether the person or affiliate is a "retailer maintaining a place of business within this State" as defined in Section 2 of the Use Tax Act. [30 ILCS 500/50-12] For purposes of this Section, terms shall have the meanings ascribed in Section 50-12 of the Code.

b) Every bid and offer submitted to the State, every submission to a vendor portal, every contract executed by the State, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, respondent, offeror, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor or subcontractor is not barred from bidding for or entering into a contract under Section 50-12(a) of the Code and acknowledges that the CPO-HE may declare the related contract void if any of the certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-12]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.5013 Conflicts of Interest Prohibited by the Code

a) Any bid, proposal, offer of acceptance, or proposed contract must be reviewed for conflicts of interest pursuant to Section 50-13 of the Code. If a potential conflict exists, no contract will be executed unless the CPO-HE requests and is granted an exemption by the Executive Ethics Commission under Section 50-20 of the Code.

Office or Employment

It is unlawful for any person holding an elective office in this State, holding a seat in the General Assembly, or appointed to or employed in any of the offices or agencies of State government and who receives compensation for such employment in excess of 60% of the salary of the Governor of the State of Illinois, or who is an officer or employee of the Capital Development Board or the Illinois Toll Highway Authority, or who is the spouse or minor child of any such person, to have or acquire any contract, or any direct pecuniary interest in any contract therein, whether for stationery, printing, paper, or any services, materials, or supplies, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois or in any contract of the Capital Development Board or the Illinois Toll Highway Authority. [30 ILCS 500/50-13(a)]

Financial Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person as described in subsection (a) is entitled to receive more than 7½% of the total distributable income or an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/13(b)]

Combined Financial Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person listed in subsection (a)(1) together with his or her spouse or minor children is entitled to receive more than 15%, in the aggregate, of the total distributable income or an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/13(c)]

b) For the purposes of this Part, an individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise receives a direct financial benefit in conjunction with performance of a contract, including finder's fees and commission payments.

c) For the purposes of this Part, "distributable income" means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, which is distributed to those entitled to receive a share of the income. In the case of a for-profit corporation, distributable income means "dividends". When calculating entitlement to distributable income the entitlement shall be determined at the end of the company's most recent fiscal year.

d) This Section applies to those elected to an office of Illinois State government. This Section does not apply to those elected to local government offices, including school district offices, nor does it apply to those elected to federal offices in this State. This Section does not apply to contracts with licensed professionals, provided those contracts are competitively bid.

e) Additional exceptions to the application of this Part are listed in Section 50-13(f) of the Code.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5014 Environmental Protection Act Violations

a) Unless otherwise provided, no person or business found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act [415 ILCS 5] shall do business with the State of Illinois or any university or enter into a subcontract from the date of the order containing the finding of violation until 5 years after that date, unless the person or business can show that no person involved with the violation continues to have any involvement with the business. [30 ILCS 500/50-14(a)]

b) A person or business otherwise barred by Section 50-14(a) of the Code from doing business with the State of Illinois and any university or any subcontractors under the Code may be allowed to do business with the State of Illinois or any university if it is shown that there is no practicable alternative to the State to contracting with that person or business. [30 ILCS 500/50-14(b)]

c) Every bid or offer submitted to the State, every contract executed by the State, every submission to a vendor portal, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-14 of the Code and acknowledges that the contracting university may declare the related contract void if any of the certifications required by that Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-14(c)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.5015 Lead Poisoning Prevention Act Violations

Owners of residential building who have committed a willful or knowing violation of the Lead Poisoning Prevention Act [410 ILCS 45] are prohibited from doing business with the State of Illinois or any State agency, or subcontracting under the Code, until the violation is mitigated. [30 ILCS 500/50-14.5]

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.5016 Negotiations for Future Employment

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.5017 Expatriated Entities

a) Except as provided in subsection (c), a university may not enter a contract with an expatriated entity or with any subsidiary of such an entity.

b) Except as provided in subsection (c), no business or member of a unitary business group, as defined in the Illinois Income Tax Act [35 ILCS 5], shall submit a bid or offer or enter a contract with a university if that business or any member of the unitary business group is an expatriated entity.

c) An expatriated entity or a member of a unitary business group with an expatriated entity as a member may enter a contract with a university if the CPO-HE determines:

the contract is awarded as a sole source procurement under Section 20-25 of the Code, and the CPO-HE:

A) includes in the notice of intent to enter a sole source contract a prominent statement that the intended sole source contractor is an expatriated entity; and

B) holds a public hearing at which the CPO-HE and university present written justification for the use of a sole source contract with an expatriated entity and at which any member of the public may present testimony; or

the purchase is of pharmaceutical products, drugs, biologics, vaccines, medical supplies, or devices used to provide medical and health care or treat disease or used in medical or research diagnostic tests, and medical nutritionals regulated by the Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act (21 USC 301 et seq.). [30 ILCS 500/50-17]

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5020 Exemptions

If the university or SPO finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the university shall make a recommendation to the SPO and include documentation of the university's position on the conflict. The SPO shall forward the university's recommendation and documentation to the CPO-HE, along with the name of the vendor and a description of the proposed contract. The CPO-HE shall decide whether to disapprove the contract or file a request for exemption with the Executive Ethics Commission to determine whether an exemption should be granted in accordance with Section 50-20 of the Code.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.5021 Bond Issuances

a) Definitions. For the purposes of this Part, the following listed terms shall have the same meaning as in the Code and as further defined in this subsection (a).

"Entity" means brokers, dealers and municipal securities dealers as defined in, and subject to, Rule G-37 and Rule G-38 of the Municipal Securities Rulemaking Board (MSRB).
"Independent Consultant" means a person used by the entity to obtain or retain securities business through direct or indirect communication by the person with a State official or employee (including an official or employee of the university) on behalf of the entity when the communication is undertaken by the person in exchange for or with the understanding of receiving payment form the entity or other person. "Independent Consultant" does not include a finance professional employed by the entity or a person whose sole basis of compensation from the entity is the actual provision of legal, accounting, or engineering advice, services or assistance in connection with the securities business that the entity seeks to obtain or retain. [30 ILCS 500/50-21(a)]
"Issuance of bonds or other securities" means the purchase or placement of a primary offering of municipal securities on other than a competitive bid basis.
"Issuance by the university" means the issuance of bonds or other securities by the university when acting as a governmental issuer ("Issuer") specified in MSRB Rule G-37.
"MSRB Rule G-37" and "MSRB Rule G-38" refer to the Municipal Securities Rulemaking Board rules in effect on August 6, 2012 or any successor rules adopted by the MSRB on the same subject after August 6, 2012 as provided in Section 50-21(b) and (c) of the Code. MSRB Rule G37 went into effect on April 25, 1994, and MSRB Rule G-38 went into effect on August 29, 2005. Copies of G-37 and G-38 are available to the public at the MSRB website: http://www.msrb.org, at the United States Security and Exchange Commission's website: http://www.sec.gov, and at the office of the CPO-HE. (See 30 ILCS 500/50-219(b) and (c).)

b) Use of Independent Consultants

Section 50-21(a) of the Code prohibits a university from entering into a contract with respect to the issuance of bonds or other securities by the university with any entity that uses an independent consultant to obtain or retain securities business through direct or indirect communications by the person with a State official or employee, including an official or employee of the university. Use of an independent consultant is also prohibited by MSRB Rule G-38. Every contract between the university and an entity relating to the issuance of bonds or other securities by the university shall include a certification that the entity did not use an independent consultant to obtain the contract and that the entity has not been found to knowingly violate MSRB Rule G-38 (or any successor rule) with respect to the prohibition on obtaining or retaining municipal securities business.
In the event a federal agency finds that an entity knowingly violated MSRB Rule G-38 in the State of Illinois, the CPO-HE shall bar that entity from participating in any contract with respect to the issuance of bonds or other securities by any university for a period of one year as specified in Section 50-21(c) of the Code.

c) Prohibited Political Contributions

Section 50-21(b) of the Code requires that every contract between the State and an entity relating to the issuance of bonds or other securities by the State include a certification that the entity is and will remain for the duration of the contract in compliance with the MSRB Rule G-37 requirement for reporting political contributions and that the entity has not been found to have knowingly violated in Illinois MSRB Rule G-37 (or any successor rule) with respect to the making of prohibited political contributions or payments. Failure to remain in compliance throughout the term of the contract shall make the contract voidable by the CPO-HE.
In the event a federal agency finds that an entity knowingly violated MSRB Rule G-37 in the State of Illinois by making prohibited political contributions, the CPO-HE shall impose a penalty that is at least twice the fine assessed by the federal agency. In addition, the CPO-HE shall bar the entity from participating in any contract with respect to the issuance of bonds or other securities by any of the universities for a period of one year as specified in Section 50-21(c) of the Code.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.5023 Other Conflicts of Interest

a) Except as otherwise specified in the Public Officer Prohibited Activities Act [50 ILCS 105], no State official/member of the university's governing board shall be directly or indirectly interested in any contract to be made by the State official/Board for any purposes whatsoever.

b) Any university that has its own policies regarding procurement conflict of interest relative to its own employees must provide notice of any potential conflict to the SPO along with the university's resolution. This information may be used by the SPO when considering whether to award the contract.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.5030 Revolving Door Prohibition

a) CPOs, SPOs, Procurement Compliance Monitors, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to the State agency most recently employing them in an affected position for a period of at least 6 months. The prohibition includes, but is not limited to: lobbying the procurement process; specifying, bidding, proposing bids or contract documents; on their own behalf or on behalf of any firm, partnership, association or corporation. This prohibition applies only to persons who terminate an affected position on or after January 15, 1999. [30 ILCS 500/50-30]

b) The CPO-HE shall identify in writing any designees whose job, or whose position description, is at least 51% directly related to procurement. Activities directly related to procurement include, but are not limited to: drafting specifications, preparing solicitations, evaluating offers, negotiating contracts, administering contracts and supervising any of the foregoing.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.5035 Disclosure of Financial Interests and Potential Conflicts of Interest

a) Disclosures of financial interests and potential conflicts of interest shall be obtained for all submissions to a vendor portal and from all bidders, offerors, vendors, or contractors.

For the purposes of Section 50-35(a) of the Code, "bids and offers from responsive bidders, offerors, vendors, or contractors" means bids, offers and quotes received pursuant to any source selection method, except for sole source and emergency procurements, and that has an annual value of more than $50,000.
Disclosures are not required in sole source and emergency contracts, but shall be obtained in whole or in part when practical and when the annual value exceeds $50,000.
Disclosures shall be obtained for small purchases annually exceeding $50,000, except as otherwise provided in this Section. If a small purchase could qualify as an emergency or sole source, disclosures are not required but shall be obtained when practical.
In certain circumstances (e.g., emergency and sole source procurements) in which the vendor refuses or is unable to provide disclosures, the SPO may authorize the university to move forward with the transaction. The university must provide documentation of efforts to obtain compliance in a form prescribed by the PPB and CPO-HE.

b) For purposes of:

Section 50-35(b) of the Code, "parent entity" means an entity that owns 100% of the bidding entity.
Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

c) "Distributive Income" means income of a company after payment of all expenses, including employee salaries and bonuses and retained earnings, which is distributed to those entitled to receive a share of that income. In the case of a for-profit corporation, distributive income means "dividends". When calculating entitlement to distributive income, the entitlement shall be determined at the end of the company's most recent fiscal year.

d) "Personal Services" shall be any contract for services subject to the Code, including, by way of example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

e) "Subject to Federal 10K Reporting" means subject to the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934.

f) "10K Disclosure" means a report required under section 13 or 15(d) of the Securities Exchange Act of 1934.

g) New disclosures are required on contract renewals. New disclosures are not required for contract amendments.

h) 10K Disclosures

Any vendor subject to federal 10K reporting requirements may submit its 10K to the university in satisfaction of the disclosure requirement of Section 50-35(b) of the Code. The vendor may be required to identify the specific sections or parts in the 10K disclosure containing information, if any, pertaining to those who have an ownership interest or an interest in the distributive income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State. If the financial interest or conflict of interest information requested by the university is not in the 10K, or in a document that may be submitted to the SEC in conjunction with or in lieu of the 10K, then that additional documentation shall be provided as well.
10K disclosures are available for public review. Any potential conflict of interest identified by the public and brought to the attention of the CPO-HE or SPO shall be investigated.
In circumstances in which a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code, the SPO or designee may consider information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure in determining whether a potential conflict of interest exists.

i) Form of Disclosure

The form of disclosures shall be prescribed by the CPO-HE and shall include at least the names, addresses and dollar or proportionate share of ownership of each person identified in this Section, their instrument of ownership or beneficial relationship, and notice of any potential conflict of interest.

j) Intent of Disclosure

The disclosure required in subsection (i) is not intended to prohibit or prevent any contract. The disclosure is meant to fully and publicly disclose any potential conflict to the CPO-HE, SPOs, their designees, and executive officers so they may adequately discharge their duty to protect the State. [30 ILCS 500/50-35(c)]

Determination by Procurement Officer

A potential for a conflict of interest exists if a reasonable person would naturally and probably expect a conflict to come into existence even though one does not now exist. Improbable or strained connections will not constitute a potential for a conflict. The mere disclosure of one or more of the 10 relationships described in Section 50-35(b) of the Code is not sufficient, without a determination by the CPO-HE or SPO, to conclude a potential for a conflict exists. When a potential conflict of interest is identified, discovered or reasonably suspected, it shall be reviewed by the CPO-HE or SPO, who will send the contract to PPB. PPB shall recommend in writing to the CPO-HE whether to allow or void the contract, bid or offer or subcontract weighing the best interest of the State of Illinois.

If the CPO-HE disagrees with the PPB's recommendation to void a contract, bid or offer, the Executive Ethics Commission will hold a hearing. No contract with a potential conflict of interest shall be awarded before a hearing if the PPB recommends a contract, bid or offer be voided. The written determination shall become a publicly available part of the contract, bid or proposal file.
Requirements for Reasonable Care and Diligence

These thresholds for disclosure do not relieve the CPO-HE, SPO or their designees from reasonable care and diligence for any contract, bid, offer or submission to a vendor portal. The CPO-HE, SPOs or their designees shall be responsible for using any reasonably known and publicly available information to discover any undisclosed potential conflict of interest and act to protect the best interest of the State of Illinois. [30 ILCS 500/50-35(e)]

Inadvertent or Accidental Failure to Fully Disclose

Inadvertent or accidental failure to fully disclose shall render the contract, bid, offer, proposal, subcontract, or relationship voidable by the CPO-HE if he or she deems it in the best interest of the State of Illinois and, at his or her discretion, may be cause for barring from future contracts, bids, offers, proposals, subcontracts, or relationships with the State for a period of up to 2 years. [30 ILCS 500/50-35(f)]

Intentional, Willful or Material Failure to Disclose

Intentional, willful or material failure to disclose shall render the contract, bid, offer, proposal, subcontract, or relationship voidable by the CPO-HE if he or she deems it in the best interest of the State of Illinois and shall result in debarment from future contracts, bids, offers, proposals, subcontracts, or relationships with the State for a period of not less than 2 years and not more than 10 years. Reinstatement after 2 years and before 10 years must be reviewed and commented upon by the Governor, or by an executive ethics board he or she may designate. The comment shall be returned to the CPO-HE, who must rule in writing whether and when to reinstate. [30 ILCS 500/50-35(g)]

Other Procurements

In addition, all disclosures shall note any other current or pending contracts, bids, offers, proposals, subcontracts, leases or other ongoing procurement relationships the bidder, offeror, potential contractor, contractor, or subcontractor has with any other unit of State government and shall clearly identify the unit and the contract, offer, proposal, lease or other relationship. [30 ILCS 500/50-35(h)]

Continuing Obligation

The bidder, offeror, potential contractor, or contractor has a continuing obligation to supplement the disclosure required by this Section throughout the bidding process, during the term of any contract, and during the vendor portal registration process. [30 ILCS 500/50-35(i)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.5036 Disclosure of Business in Iran

a) Each bid or offer submitted for a State contract, other than a small purchase, shall include a disclosure of whether the bidder, offeror or any of its corporate parents or subsidiaries, within the 24 months before submission of the bid or offer, had business operations that involved contracts with, or provision of supplies or services to, the Government of Iran, companies in which the Government of Iran has any direct or indirect equity share, consortiums or projects commissioned by the Government of Iran, or companies involved in consortiums or projects commissioned by the Government of Iran and:

More than 10% of the company's revenue produced in or assets allocated in Iran involve oil-related activities or mineral extraction activities; less than 75% of the company's revenues produced or assets located in Iran involve contracts with or provision of oil-related or mineral-extraction products or services to the Government of Iran or a project or consortium created exclusively by that government; and the company has failed to take substantial action; or
The company has, on or after August 5, 1996, made an investment of $20 million or more, or any combination of investments of at least $10 million each that in the aggregate equals or exceeds $20 million in any 12-month period, that directly or significantly contributes to the enhancement of Iran's ability to develop petroleum resources of Iran. [30 ILCS 500/50-36(b)]

b) A bid or offer that does not include the disclosure required by subsection (a) may be given a period after the bid or offer is submitted to cure non-disclosure. The CPO-HE may consider the disclosure when evaluating the bid or offer or awarding the contract. [30 ILCS 500/50-36(c)]

c) The CPO-HE shall provide the State Comptroller with the names of each entity disclosed under subsection (a) as doing business or having done business in Iran. The State Comptroller shall post that information on his or her official website. [30 ILCS 500/50-36(d)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5037 Vendor Registration, Certification and Prohibition on Political Contributions

a) Introduction

Illinois statute [10 ILCS 5/9-35 and 30 ILCS 500/20-160 and 50-37] restricts political contributions by vendors and affiliated entities, requires registration with the State Board of Elections (SBEL), and requires solicitation and contract certifications relative to the requirements of the statutes. This Section supplements requirements found in the statutes and does not excuse compliance with any of those requirements.

b) General Registration Requirements

These requirements apply to contracts, bids and offers that are subject to the Code:

A) Bids/offers referenced in this Section are those submitted in response to a competitive solicitation that is posted to the Bulletin, regardless of the value assigned to the procurement.

B) Bids and offers include pending bids and offers.

C) These requirements generally apply to a vendor whose existing State contracts have an aggregate value in excess of $50,000, or whose aggregate value of bids/offers for State contracts exceeds $50,000, or whose aggregate value of State contracts and bids/offers exceeds $50,000.

D) This value is calculated on a calendar-year basis.

On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/offers. Vendors must register with SBEL when the vendor determines that the value of the contracts and bids/offers meets the threshold for registration.
An "executive employee" means:

A) the President, Chairman of the Board, Chief Executive Officer and/or other individuals who fulfill equivalent duties as the President, Chairman of the Board or Chief Executive Officer; and/or

B) any employee whose compensation is determined directly, in whole or in part, by the award or payment of contracts by a State agency to the entity employing the employee, irrespective of the employee's title or status in the business entity. For the purposes of this subsection (b)(3)(B), compensation determined directly by award or payment of contracts means a payment over and above regular salary that would not be made if it were not for the award of the contract.

Businesses required to register have a continuing duty to ensure that the registration is accurate in accordance with Sections 20-160 and 50-37 of the Code.

c) Bids and Proposals

In order to be considered for award, a vendor who meets the requirements for registration must be registered with SBEL as of the date the bid or offer is due and shall be able to produce a copy of the Registration Certificate on that date.
If a vendor who meets the requirements for registration is not registered by the date the bid or offer is due, the CPO-HE shall review the bid or offer to determine whether the bidder or offeror made a good faith effort to comply with the registration requirements prior to the bid or offer being due.

A) Good faith effort may consist of, but is not limited to, an attempt to register either as a parent or subsidiary, registration under a prior name, acts of God that made registration impossible, or other demonstrated effort to register in advance of the bid or offer being due.

B) If the CPO-HE finds good faith efforts were made to register, the CPO-HE shall notify the bidder or offeror it has 5 business days to achieve compliance with the registration requirements.

Prior to award or execution of a contract, the SPO, or a designee of the SPO, shall verify that the vendor who meets the requirements for registration has registered with SBEL and shall document vendor compliance.
Annual certification through the vendor portal in accordance with Section 4.1535 satisfies the requirements of this Section.
A bid or offer that fails to meet the requirements for registration with SBEL shall be rejected as non-responsive.

d) Contracts

For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals exceeds $50,000, the vendor must provide documentation of vendor compliance upon request and make the appropriate contract certification, if it has not already done so. The Registration Certificate or other evidence of vendor compliance may be provided by reference to and incorporation of the vendor's prequalification by the CPO-HE.
A university shall identify in the solicitation whether the contract is estimated to exceed $50,000 annually. Vendors submitting bids or offers for master contracts estimated to exceed $50,000 annually regardless of consumption are required to register with SBEL.
For indefinite quantity/estimated value contracts that are not estimated to exceed $50,000 annually, a vendor who is otherwise not required to register shall register with SBEL when the value of orders placed pursuant to an indefinite/estimated value contract plus all other contracts and bids/proposals exceeds $50,000.
For change orders, if the value of the change order, by itself or in combination with the contract being renewed plus other contracts and bids/proposals exceeds $50,000 annually, the vendor must provide the Registration Certificate or other evidence of vendor compliance upon request and make the appropriate contract certification, if it has not already done so.
Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications, and the vendor must supply the Registration Certificate or other evidence of vendor compliance upon request. If any violation by the vendor is not cured within 5 business days after receipt of notification of the violation, the contract is voidable by the State without penalty.
Contract certification required by Section 20-160 of the Code shall be included in or added to each contract that must be filed with the State Comptroller in accordance with Section 20-80 of the Code and those written two-party contracts that need not be filed with the Comptroller. Universities may require written confirmation of the rule-imposed certification at any time.

e) Each solicitation issued and contract executed by the State shall be deemed to contain a statement that the contract is voidable under Section 50-60 of the Code if the bidder, offeror or contractor fails to comply with Section 20-160 of the Code.

f) Prohibited Political Contributions

Upon discovery of a political contribution that is potentially prohibited by Section 50-37 of the Code, the CPO-HE, within 5 business days, shall send a letter requesting response from the business entity that made the potential prohibited contribution acknowledging or denying that the contribution was prohibited.
If the CPO-HE determines that a political contribution was prohibited, all contracts held by the contributing business entity are voidable, and the CPO-HE shall determine if the circumstances surrounding the prohibited political contribution warrant the voiding of these contracts.
If a business entity violates Section 50-37(b) of the Code three or more times within a 36 month period, the CPO-HE shall void all contracts with the business entity and the business entity shall be prohibited from responding to any solicitation issued by any State agency or entering into a contract with any university for three years from the date of the last violation.
If the CPO-HE determines that a prohibited political contribution is grounds to suspend a business entity pursuant to Section 4.5560(b), the business entity shall have the right to a hearing in accordance with Section 4.5560(h), to be conducted in accordance with Subpart V.

g) Notice

Notice of each violation of Section 50-37 and any penalty imposed for each violation shall be published in the Illinois Register and the Bulletin.
The CPO-HE shall directly notify a political committee in receipt of a prohibited political contribution that payment equal to the amount of the contribution is due the State of Illinois within 30 days after publication of the violation in the Illinois Register.
If an amount owed by a political committee as a result of a prohibited political contribution is not paid and is deemed uncollectible for any reason, notice of the political committee's nonpayment shall be published in the Illinois Register and the Bulletin.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.5038 Lobbying Restrictions

a) A person or business that is let or awarded a contract is not entitled to receive any payment, compensation or other remuneration from the State to compensate the person or business for any expenses related to travel, lodging or meals that are paid by the person or business to any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder. [30 ILCS 500/50-38(a)]

b) Disclosure

Any bidder, offeror, potential contractor, or contractor on a State contract that hires a person required to register under the Lobbyist Registration Act [25 ILCS 170] to assist in obtaining a contract shall:

A) Disclose all costs, fees, compensation, reimbursement and other remunerations paid or to be paid to the lobbyist related to the contract;

B) Not bill or otherwise cause the State of Illinois to pay for any of the lobbyist's costs, fees, compensation, reimbursements or other remuneration;

C) Sign a verification certifying that none of the lobbyist's costs, fees, compensation, reimbursements or other remuneration were billed to the State.

The information in subsection (b)(1)(A), along with all supporting documents, shall be filed with the agency awarding the contract and with the Secretary of State. The CPO-HE shall post this information, together with the contract award notice, in the Bulletin. [30 ILCS 500/50-38(b)]

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.5039 Procurement Communication Reporting Requirement

a) Reporting Requirement

Any written or oral communication received by a State employee who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract or a project, shall be reported to the Procurement Policy Board in accordance with rules of the Executive Ethics Commission (2 Ill. Adm. Code 1620). [30 ILCS 500/50-39(a)]

b) Excepted Communications

Reportable communications do not include the following:

A) statements made by a person publicly in a public forum. However, communications made in a public forum, if privately, must be reported;

B) statements regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter;

C) statements made by a State employee to:

i) the State employee's agency head;

ii) other employees of that agency;

iii) employees of the Executive Ethics Commission, including the CPO-HE, SPOs, PCMs and other CPO-HE staff; or

iv) an employee of another State agency who, through the communication, is either:

• exercising oversight, supervisory, or management authority over the procurement in the normal course of business and as part of official responsibilities;

D) Unsolicited communications providing general information about products, services, or industry best practices before those products or services become involved in a procurement matter;

E) Communications received in response to procurement solicitations, including, but not limited to, vendor responses to:

i) an IFB, RFI, RFP, Request for Qualifications, small purchase, sole source or emergency procurement; or

ii) questions or answers posted to the Bulletin to supplement the procurement action, provided that the communications are made in accordance with instructions contained in the procurement solicitation, procedures, or guidelines;

F) Communications that are privileged, protected or confidential under law; and

G) Communications that are part of a formal procurement process as set out by statute, rule, or solicitation, guidelines, or procedures, including but not limited to:

i) the posting of procurement opportunities;

ii) the process for approving a procurement business case or its equivalent;

iii) fiscal approval;

iv) submission of bids or offers;

v) the finalization of contract terms and conditions with an awardee or apparent awardee; and

vi) any other similar formal procurement process.

The provisions of this Section shall not apply to communications regarding the administration and implementation of an existing contract, except communications regarding change orders or the renewal or extension of a contract. [30 ILCS 500/50-39(a)]
The reporting requirement does not apply to communications asking for clarification on a published solicitation provided:

A) the response did not provide a competitive advantage to the person or business who asked for clarification; and

B) the question and answer were published to the Bulletin as an addendum to the solicitation.

No trade secret or other proprietary or confidential information shall be included in any communication reported to the Procurement Policy Board. [30 ILCS 500/50-39(b)]

c) When an oral communication made by a person required to register under the Lobbyist Registration Act [25 ILCS 170] is received by a State employee that is covered under this Section, all individuals who initiate or participate in the oral communication shall submit a written report to that State employee that memorializes the communication and includes, but is not limited to, the items listed in Section 50‑39 of the Code. [30 ILCS 500/50-39(c)]

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.5040 Reporting and Anticompetitive Practices

a) Every vendor, bidder, offeror, potential contractor, contractor, CPO-HE, SPO, designee, elected official, or State or university employee is required to report in writing any suspected collusion or other anticompetitive practice to the Office of the Executive Inspector General, the Office of the Illinois Attorney General, and the CPO-HE.

b) The notice shall include all known or relevant facts that support the suspected collusion or anticompetitive practice.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5055 Supply Inventory

Universities shall manage their inventory of supplies in compliance with the 12-month inventory restriction of Section 50-55 of the Code.

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.5080 Sexual Harassment Policy

Every bidder, offeror, potential contractor, contractor or subcontractor shall have a sexual harassment policy in accordance with Section 2-105(A)(4) of the Illinois Human Rights Act. A copy of the policy shall be available to the CPO-HE or the university upon request.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5325 Concessions

a) Each public institution of higher education may enter into concessions, including the right to engage in activity on the lessors property (e.g., a refreshment or parking concession), and including the assignment, license, sale, or transfer of interests in or rights to discoveries, inventions, patents, or copyrightable works, for property, whether tangible or intangible, over which it has jurisdiction. Concessions shall be reduced to writing and shall be awarded at the discretion of the institution with jurisdiction over the property. Notice of the award of a concession shall be published in the Bulletin.

b) The duration and terms of concessions and leases for personal property shall be at the discretion of the institution with jurisdiction over the property.

c) Notwithstanding any other provision of law, if the Illinois Finance Authority issues bonds for the financing of buildings, structures, or facilities that are determined by the governing board of a public institution of higher education to be either required by or necessary for the use or benefit of that public institution of higher education, then the duration of any lease for real property entered into by that public institution of higher education, as lessee or lessor, in connection with the issuance of those bonds shall be at the discretion of that public institution of higher education. [30 ILCS 500/53-25]

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.5400 General

a) This Part describes and implements approved methods and requirements of source selection using:

Governmental Joint Purchasing;
Nongovernmental Joint Purchasing;
Group Purchasing Organizations;
Piggyback Contracts.

b) Joint and cooperative purchasing activities must be approved by the CPO-HE or by a designee.

c) Joint and cooperative purchasing activities and the resulting contracts must be based on full and open competition. Full and open competition requires:

public notice of the availability of the solicitation for bids or proposals; and
the terms and conditions are appropriate to meeting the stated need and are not overly restricted so as to impose unnecessary limits on which vendors may respond.

d) The CPO-HE or a designee may approve use of a cooperative purchasing activity or resulting contract procured through a noncompetitive method if appropriate to meet a university's need and use of the resulting contract is in the best interest of the university. Approval may be given in advance pursuant to a specific request by a university purchasing director to the CPO-HE or a designee. The CPO-HE or a designee may prescribe a form for these requests.

e) This Part does not apply to contruction-related professional services contracts awarded in accordance with the provisions of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

f) Violation of Joint/Cooperative Purchasing Requirements

If any contract or amendment to a contract is entered into, or purchase or expenditure of funds is made, in violation of the Procurement Code, the Governmental Joint Purchasing Act, or this Part, the CPO-HE may declare the contract or amendment void.
If any contract or amendment to a contract is entered into, or purchase or expenditure of funds is made, in violation of the Procurement Code, the Governmental Joint Purchasing Act, or this Part, the CPO-HE may ratify and affirm the contract or amendment if the CPO-HE determines that ratification is in the best interests of the university.

g) Report of Joint and Cooperative Purchasing Activities

The CPO-HE shall submit to the General Assembly no later than November 1 of each year a report of procurements made under this Part for the prior fiscal year.

h) Universities may conduct or participate in Governmental Joint Purchasing, Nongovernmental Joint Purchasing, Group Purchasing Organizations, or Piggyback Contract activities with various entities, including, without limitation:

federal agencies;
a consortium of governmental, educational, medical research or similar entities; and
group purchasing organizations of which the CPO-HE or university is a member or affiliate, including any purchasing entity operating under the federal General Services Administration, the Higher Education Cooperation Act [110 ILCS 220], and the Midwestern Higher Education Compact Act [45 ILCS 155].

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.5420 Governmental Joint Purchasing

a) The CPO-HE or designee may authorize any university to purchase personal property, supplies or services jointly with one of more governmental units. This applies when the university and another governmental entity or consortium of governmental entities agree to jointly pursue a procurement opportunity. Procurements and contracts conducted by the Illinois Public Higher Education Cooperative on behalf of two or more universities are authorized by the provisions of this Section.

b) A university may be a lead procuring entity in a governmental joint purchasing activity and lead other public universities or agencies of other states (including Washington DC and U.S. territories) or by a consortium of these entities.

When a university is the lead procuring entity, all joint purchases shall be competitively conducted in accordance with the Code and this Part.
The CPO-HE or designee may authorize a multiple award.

c) A university may be a participant procuring entity in a governmental joint purchasing activity led by a public university or agency of another state (including Washington DC and U.S. territories) or by a consortium of these entities.

When a university is a participant procuring entity, all joint procurements shall be competitively conducted in accordance with the procurement laws of the lead procuring entity.
To be considered a participant procuring entity, a university must actively contribute to the procurement, by such means as assisting in the development of specifications, being a member of the evaluation committee or a required approver of the proposed award, or engaging in other similar activity that assists with the procurement.
When a university is a participant procuring entity, all contracts resulting from a joint purchase shall contain all provisions required by Illinois law and this Part, including certifications and disclosures required under Article 50 of the Code.

d) All procurements conducted as a governmental joint purchase shall be conducted as a competitive procurement except:

for small purchases that follow the small purchase process outlined in Section 20-20 of the Code; or
when the CPO-HE or designee determines competition is impractical. When impractical, the CPO-HE or designee may authorize purchases following the sole source process outlined in Section 20-25 of the Code or the emergency purchase process outlined in Section 20-30 of the Code.

e) The CPO-HE or designee shall publish a notice of award to the Bulletin for a minimum of 14 days prior to execution of the contract. The notice shall contain all information required in Section 4.1525(d).

f) All proposed governmental joint purchase contracts must be submitted to the CPO-HE or designee for review and approval prior to execution.

g) The CPO-HE may designate contracts made through a governmental joint purchase as available to other governmental units in Illinois.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5422 Nongovernmental Joint Purchasing

a) The CPO-HE or designee may authorize any university to purchase personal property, supplies or services jointly with one of more nongovernmental units. This applies when the university and a not-for-profit entity or for-profit entity, or consortium of for-profit or not-for-profit entities, agree to jointly pursue a procurement opportunity.

b) A university may be a lead procuring entity in a nongovernmental joint purchasing activity and lead other nongovernmental entities or a consortium of these entities. When a university is a lead procuring entity, all procurements shall be conducted in accordance with the Code and this Part.

c) A university may be a participant procuring entity in a nongovernmental joint purchasing activity led by a nongovernmental entity or by a consortium of these entities.

When a university is a participant procuring entity, all joint procurements shall be conducted in accordance with the agreed specifications, terms and conditions.
To be considered a participant procuring entity, a university must actively contribute to the procurement, by such means as assisting in the development of specifications, being a member of the evaluation committee or a required approver of the proposed award, or engaging in other similar activity that assists with the procurement.
Contracts resulting from a nongovernmental joint purchase shall contain all provisions required by Illinois law and this Part, including certifications and disclosures required under Article 50 of the Code, although the time requirements may be modified.

d) The CPO-HE or designee shall publish a notice of award to the Bulletin for a minimum of 14 days prior to execution of the contract. The notice shall contain all information required in Section 4.1525(d).

e) All proposed nongovernmental joint purchase contracts must be submitted to the CPO-HE or designee for review and approval prior to execution.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5424 Group Purchasing Organizations

a) The CPO-HE or designee may authorize a university or consortium of universities to purchase personal property, supplies and services that have been procured through a competitive process by a:

federal agency;
consortium of governmental, educational, medical research or similar entities; or
group purchasing organizations of which the CPO-HE or university is a member or affiliate, including, without limitation, any purchasing entity operating under the federal General Services Administration, the Higher Education Cooperation Act, and the Midwestern Higher Education Compact Act.

b) A Group Purchasing Organization contract is one entered into by the entity for itself, on behalf of entities under its jurisdiction or on behalf of the membership of the entity, and in compliance with the purchasing and contracting requirements applicable to the Group Purchasing Organization. A university is not required to participate in the procurement activity prior to an award.

c) Purchases made in this manner are referred to as Group Purchasing Organization purchases.

d) Contracts by a university pursuant to a contract resulting from a Group Purchasing Organization activity shall contain all provisions required by Illinois law and this Part, including certifications and disclosures required under Article 50 of the Code.

e) All procurements conducted by a Group Purchasing Organization shall be conducted as a competitive procurement except:

for small purchases that follow the small purchase process required by Section 20-20 of the Code;
for purchases that follow the sole source process required by Section 20-25 of the Code; or
for purchases that follow the emergency purchase process required by Section 20-30 of the Code.

f) The CPO-HE or designee shall publish notice of intent to use any Group Purchasing Organization contract to the Bulletin for a minimum of 14 days prior to utilization. This notice shall contain all information required in Section 4.1525(d) of this Part.

g) All proposed Group Purchasing Organization contracts must be submitted to the CPO-HE or designee for review and approval prior to utilization.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5426 Piggyback Contracts

a) The CPO-HE or designee may authorize a university to purchase personal property, supplies and services that have been procured through a competitive process by another state, another State agency or public university of this State or any other state, or the federal government.

b) Purchases made in this manner are referred to as piggyback contracts. A piggyback contract is a form of cooperative purchasing through which a university is extended the pricing and terms of a contract entered into by another state, or another State agency or public university of this State or any other state, or by the federal government.

The scope of work may not be expanded from what was procured in the underlying contract.
A piggyback contract is not permissible when the action would call for an increase in quantities, or for products or services that were not originally solicited and not originally evaluated as part of the underlying contract award.

c) Contracting Requirements

To piggyback a contract from another state, another State agency or public university of this State or any other state, or the federal government, the underlying contract must include language allowing other governmental entities to utilize the contract.
The original contracting entity shall be contacted and advised of the intended piggyback contract and, if necessary, discussions shall be held concerning any potential for diminution of supply or lack of vendor capacity to provide the supplies or services.
A university shall obtain from the originating state, State agency, public university, or federal government, and include as part of its procurement file, the:

A) solicitation;

B) bid tabulation or evaluation, with the reason for award;

C) copy of the winning bid or proposal; and

D) copy of the contract.

d) The CPO-HE or designee shall publish notice of intent to enter a piggyback contract to the Bulletin for a minimum of 14 days prior to contract execution. This notice shall contain all information required in Section 4.1525(d).

e) A proposed piggyback contract must be submitted to the CPO-HE or designee for review and approval prior to contract signature.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5440 Other Joint Purchasing (repealed)

History

Source: Repealed at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5460 No Agency Relationship (repealed)

History

Source: Repealed at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5500 General

This Part establishes the standards and governing procedures to be followed for resolving procurement-related disputes, protested solicitations and awards, and contract controversies.

History

Source: Added at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5550 Protests

a) Procurement-Related Protests Allowed

Any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-bid/proposal meeting and any decision to reject a late bid or proposal.
Any person who has submitted a bid or proposal may protest a decision to reject the person's bid or proposal or to award to another person.

b) Protest Review Officer

The CPO-HE may appoint one or more Protest Review Officers (PRO) to consider the procurement-related protests and make a recommendation to the CPO-HE for resolution of the protest. The CPO-HE may adopt the recommendation or take other action.

c) Submission of Protest

A protesting party must submit a protest in writing to the PRO identified in the solicitation document. Fax and e-mail qualify as writing, but the PRO does not guarantee receipt using those means.
The protest must be physically received by the PRO at the location specified. A postmark or other carrier mark prior to the due date and time is not sufficient to show physical receipt.

B) In regard to rejection of individual bids or proposals or awards, the protest must be received by close of business no later than 14 days after the protesting party knows or should have known of the facts giving rise to the protest to ensure consideration, and, in any event, must be received before execution of the applicable contract.

C) The PRO, for good cause shown, or when it determines that a protest raises issues significant to the procurement system, may consider an untimely protest. Good cause may include, but is not limited to, instances in which the procurement file is not available in a timely manner to interested parties or when a Freedom of Information Act request has not been responded to by a university in full or in part.

Any notice posted to the Bulletin establishes the "known or should have known" date for the subject matter of the notice.
Protests must be clearly marked on the delivery container, the fax cover sheet or the e-mail subject line.
No formal briefs or other technical forms of pleading or motion are required. Protest submissions should be concise and logically arranged and should clearly state sufficient grounds of protest. The written protest shall include as a minimum the following:

A) the name and address of the protesting party;

B) identification of the procurement and, if a contract has been awarded, its number or other identifier;

D) supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated. If submitting the protest by fax, supporting documentation over 20 pages in length may not be included without authorization. If the protest is by fax or e-mail, the protesting party may be required to submit documentation by mail or carrier within 2 days after the request; and

E) specific relief sought.

The protesting party shall clearly identify any information in the protest that is confidential, proprietary or a trade secret.

d) Requested Information

The university must supply a response and any additional information requested by the PRO within the time periods set in the request. If a university fails to comply with this request, the PRO may consider the protest on the basis of available information or may recommend to the CPO-HE that the relief requested in the protest be granted.
The protesting party must supply any additional information requested by the PRO within the time periods set in the request. If the protesting party fails to comply with this request, the PRO shall consider the protest on the basis of available information or may recommend to the CPO-HE that the relief requested in the protest be denied.
The PRO may request an interested party supply additional information within the time period set in the request. For purposes of a protest, an "interested party" means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.

e) Stay of Procurements During Protest

Unless the CPO-HE determines the needs of the State require an immediate execution of a contract, the following apply:

When a protest has been timely filed and before an award has been made, no award of the contract shall be made until the protest has been resolved.
If timely received but after award, the award shall be stayed without penalty to the State.

f) Resolution

After considering the evidence presented, the PRO shall submit a proposed written resolution of the protest to the CPO-HE. The CPO-HE will resolve the protest by means of a written determination, as expeditiously as possible after receiving all relevant information. In determining the appropriate recommendation, the PRO shall consider the seriousness of the procurement deficiency, the degree of prejudice to other parties or to the integrity of the competitive procurement system, the good faith of the parties, the urgency of the procurement, and the impact of the recommendation on the university's mission. The recommendation may include, but is not limited to:

affirming the university's initial decision, in whole or in part;
directing the university to issue a new solicitation;
directing the university to award a contract consistent with statute and rule; or
directing such other action as is necessary to promote compliance with statute or rule.

g) Effect of Judicial Proceedings

If an action concerning the protest has commenced in a court or administrative body, the CPO-HE may defer resolution of the protest pending the judicial or administrative determination.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5560 Suspension and Debarment

a) This Part applies to all debarments or suspensions of vendors from consideration for award of contracts under the Code. For purposes of this Part, all references to "vendors" includes subcontractors.

b) The CPO-HE may suspend a vendor from doing business with the university or with respect to specific types of supplies or services.

c) When the CPO-HE finds cause exists for suspension or debarment, a notice of suspension or debarment, including a copy of that determination, shall be sent to the suspended vendor. Notice shall be furnished in writing by personal service or by certified or registered mail, shall include the cause for the proposed suspension or debarment, and shall contain the legal authority and statement of the matters asserted or acts complained of upon which the allegations in the notice are based. Bids or proposals will not be solicited from the vendor and, if received, will not be considered during the period of suspension or debarment.

d) Acts or omissions that may be cause for suspension include, but are not limited to:

fraud, embezzlement, theft, collusion, conspiracy, anti-competitive activity or other misconduct and offenses prohibited by law, whether or not the misconduct or offense is in connection with a university contract or subcontract or any contract or subcontract requiring CPO-HE approval;
making a material false statement in an application for prequalification or in any forms or affidavits required as part of a prequalification or contracting process;
materially violating any rule or procurement procedure or making a material false statement in connection with any rules or procurement procedures of the CPO-HE;
making a material false statement, representation, claim or report respecting the character, quality or cost of any work performed or materials furnished in connection with a contract or subcontract;
doing business with a suspended contractor or subcontractor in connection with a contract or subcontract subject to the approval of the CPO-HE; or
being suspended or disbarred by another governmental entity.

e) Suspension may be imposed only for cause and in accordance with the procedures found in this Subpart.

The CPO-HE may suspend a vendor for a period of time commensurate with the seriousness of the offense, but for no more than 10 years.
The suspension will be effective seven calendar days after receipt of notice unless an objection is filed. If an objection is filed, suspension shall not become effective until the evaluation of the objection is completed.
The CPO-HE may immediately suspend a vendor or subcontractor prior to and during the pendency of a hearing under this Subpart if the CPO-HE finds that the facts and circumstances upon which the suspension cause is predicated are of such a nature as to require immediate action to safeguard the public interest in the solicitation, execution, administration or performance of contracts or subcontracts.

A) An interim suspension may be imposed pending the completion of an investigation of the causes for suspension.

B) Indictment upon charges evidencing a cause for suspension is a basis for an interim suspension. In cases involving interim suspension based upon indictment, the interim suspension may be imposed for a period of up to one year or until conclusion of the legal proceeding.

C) An interim suspension is effective immediately and will continue for a period established by the CPO-HE of up to 120 days unless terminated sooner by the CPO-HE. The CPO-HE may extend the duration of an interim suspension beyond 120 days to allow for completion of a hearing that was scheduled for commencement during the original 120-day interim suspension period.

f) The CPO-HE may debar a vendor. Debarment is the permanent suspension of a vendor from doing business with the State. A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law. Bids or proposals received from the debarred vendor or proposing the use of a debarred subcontractor will not be considered. The debarment will be effective seven calendar days after receipt of notice unless an objection is filed. If an objection is filed, debarment shall not become effective until the evaluation of the objection is completed.

g) The CPO-HE shall post the public record of suspensions and debarments on his or her webpage and on the Bulletin.

h) A vendor objecting to the suspension or debarment shall do so in writing, detailing why the action is not valid and providing any documents to support that position. The vendor may request a hearing. Any such hearing shall be conducted in accordance with Subpart U.

i) The CPO-HE shall maintain a master list of all suspensions and debarments. The master list shall retain information concerning suspensions and debarments as public records. The public information may be considered in determining responsibility.

j) A vendor or subcontractor may accept a status of nonparticipation or limited participation in university contracts or subcontracts pursuant to the terms of an administrative settlement.

k) In addition to all covered entities and affiliates, the suspension or disbarment also applies to any entity or affiliate that is formed or organized subsequent to the date a suspension or debarment action was entered. If the vendor or subcontractor named in the notice of suspension or debarment is a person, the suspension or debarment also applies to any other vendor or subcontractor:

in which the suspended or debarred person is an officer, director, manager or serves in any other substantial management or supervisory position, until the person is severed from that contractor or subcontractor; or
in which the suspended or debarred person has controlling legal or beneficial financial interest, until the suspended or debarred person's interests are divested.

l) Any suspended or debarred vendor or subcontractor, for the term of the suspension or debarment, is ineligible to participate as a vendor, subcontractor, material supplier or lessor of equipment on or in connection with contracts or subcontracts awarded or approved by a university.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.5620 Violation of Statute or Rule

a) Determination that Solicitation or Award Violates Statute or Rule

If the CPO-HE or the SPO finds that the solicitation or proposed award is in violation of statute or rule, the CPO-HE or SPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if the correction may be legally accomplished.

b) Determination that Contract Violates the Code or this Part

If any contract or amendment to a contract is entered into, or purchase or expenditure of funds is made, at any time in violation of this Part or any other law, the contract or amendment may be declared void by the CPO-HE or may be ratified or affirmed, provided the CPO-HE determines that ratification is in the best interest of the State. If the contract is ratified and affirmed, it shall be without prejudice to the State's right to any appropriate damages.
If, during the term of a contract, the SPO determines that the contractor is delinquent in the payment of debt as set forth in Section 50-11 of the Code, the CPO-HE may declare the contract void if it determines that voiding the contract is in the best interest of the State.
If, during the term of a contract, the CPO-HE learns from an annual certification or otherwise determines that the contractor or subcontractor no longer qualifies to enter into State contracts, the CPO-HE may declare the contract void if it determines that voiding the contract is in the best interests of the State. However, the related contract shall not be declared void unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor no longer qualifies to enter into State contracts. [30 ILCS 500/50-60(e)]

c) Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the university shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.5700 General

Any hearing required by the Code or offered in this Part shall be conducted in accordance with the procedures within this Subpart U.

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.5710 Informal Process

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.5720 Hearing Officers

a) The CPO-HE may appoint one or more hearing officers to conduct the hearing. If more than one Hearing Officer is assigned to conduct a hearing, one shall be designated as the Chief Hearing Officer.

b) The Hearing Officer may require that the SPO or authorized representative of a university attend a hearing or be part of a Hearing Panel.

c) The Hearing Officer will hear and consider information presented by interested persons and make a recommendation to the CPO-HE regarding the validity of the subject matter of the hearing.

d) The Hearing Officer shall be responsible for the orderly conduct of the hearing by exercising discretion in:

scheduling, starting and ending the hearing;
setting the order of activities;
setting reasonable time limits for oral statements;
resolving any conflicts that may arise during the hearing.

e) The Hearing Officer may cancel a hearing at any time prior to commencing a hearing, including by making announcement at the scheduled hearing date, time and location, but shall give as much advance notice as possible under the circumstances. A notice confirming the cancellation and any reschedule information will be published in the Bulletin.

History

Source: Added at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.5730 Notice of Hearing

a) Notice that a hearing will be held as necessary to receive testimony or written comments regarding the subject matter identified in the notice will be published in the Bulletin. The hearing notice shall be published in the Bulletin at least 14 days before the date scheduled for the hearing.

The name of the affected parties (e.g., university and vendor);
A description of the subject matter;
A justification for the action under review;
Requirements for testifying or submitting written comments;
Hearing contact information;
The date, time and location of the hearing;
Statement that all written comments and oral testimony shall be considered public record and open to review by the public;
A statement of or reference to this hearing procedure.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

44 Ill. Adm. Code 4.5740 Written Comments and Oral Testimony

Any person wishing to comment for or against the determination may do so in writing, may testify in person and may submit written comments reflecting the oral testimony.

a) Written Comments

Submission of Written Comments

Written comments are requested by the hearing registration deadline, shown in the Bulletin notice. All written comments received by the hearing date will be considered.

Incorporation of Written Comments

b) Oral Testimony

Advance Registration

Any person who wishes to testify is requested to register with the Hearing Contact. The registration period begins on the date the notice is posted to the Bulletin. Any registration deadline shall be shown in the Bulletin notice and shall be no sooner than 7 days after publication of the notice. Advance registration is requested to allow for efficient scheduling and to ensure the hearing room has sufficient capacity for those who wish to testify. Those who register in advance will be heard first on the matter for which they registered. The Hearing Officer has discretion to limit testimony for the efficiency of the hearing.

Written Copy of Testimony Requested

Witness Slip Required

Each person providing oral testimony must complete a witness slip and provide it to the Hearing Officer as instructed.

Duration of Testimony

Each person shall have a reasonable period of time to present his or her position based on the complexity of the issue and the press of other business.

c) Sole Source and Emergency Contract Extensions − Supplemental Provisions

The notice, including attachments, as shown in the Bulletin represents the position of the university and the initial position of the CPO-HE. The Hearing Officer shall have the notice placed into the record. A copy of the notice will be posted in the hearing room.
The SPO and a representative of the agency shall attend the hearing if any person registers in advance to testify in opposition to the sole source or emergency contract extension determination. Attendance may be by video or audio. The SPO and agency representative shall respond to questions of the Hearing Officer and shall be available for consultation after adjournment of the hearing.
The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative. The Hearing Officer may allow parties to engage in dialogue and allow follow-up questions and answers as needed to ensure full understanding of the matter. The Hearing Officer is not required to respond to substantive questions at the hearing nor make commitments regarding the content of his or her recommendation.

d) Suspension and Debarment − Supplemental Provisions

The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative. The Hearing Officer is not required to respond to substantive questions at the hearing or make commitments regarding the content of his or her recommendation.
Both the affected university and the vendor affected by a suspension or debarment may, at the discretion of the Hearing Officer, bring in witnesses to present testimony regarding the facts or circumstances that led to the determination to suspend or debar.
In addition to responding to questions of the Hearing Officer, the witnesses shall respond to questions by the affected vendor if, at the discretion of the Hearing Officer, the questions are allowed.

A) The Hearing Officer may allow questions when the subject matter of the question is relevant and the questioning will not unnecessarily delay the proceedings.

B) The Hearing Officer may deny questions when the subject matter seeks only to unnecessarily embarrass the witness or delay the proceedings.

e) Recommendation

After conclusion of the hearing, the Hearing Officer shall review the university's position, any information obtained from public comment (written or oral), the applicable Sections of the Code, other laws and associated rules and written policies and other information deemed relevant. The Hearing Officer shall make a written recommendation to the CPO-HE.

f) Decision of the CPO-HE

The CPO-HE shall, after considering the Hearing Officer's recommendation, make a decision in writing (which may be electronic) to uphold or overturn, in whole or in part, the university's decision.
The CPO-HE may request additional information from the Hearing Officer or any other party, including supplemental comments or testimony from the interested parties, prior to making a decision.
The CPO-HE may adopt the recommendation, in whole or in part, or reject the recommendation, or may write a separate decision.

g) Notice of Decision

The decision of the CPO-HE shall be posted to the Bulletin along with all documentation presented at the hearing by the university and by any interested party.
Upon posting notice of a decision upholding the determination, the university may take action to have the contract executed.

h) Maintenance of Records

A copy of the public notices, any documents presented, any written comments, any meeting minutes, the recommendation of the Hearing Officer, and any decision of the CPO-HE shall be maintained in the procurement file.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.6500 General (repealed)

History

Source: Repealed at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.6510 No Agency Relationship (repealed)

History

Source: Repealed at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.7000 Severability

If any provision of the Part or any application of it to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or application and, to this end, the provisions of this Part are declared to be severable.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.7005 Supply Inventory (repealed)

History

Source: Repealed at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.7010 University Furnished Property

If the university provides any property to the vendor in furtherance of the contract, the property shall remain the property of the university but may be consumed by the vendor if necessary to complete the contract. Vendor will issue a receipt for the property and will be responsible for its safekeeping and for return of unused property to the university.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

44 Ill. Adm. Code 4.7015 Inspections

a) Inspection of Plant or Site

The CPO-HE or a designee may enter a vendor's or subcontractor's plant or place of business and, pursuant to contract provisions, if any:

inspect supplies or services for acceptance by the university;
audit the books and records of any vendor or subcontractor;
investigate an action to debar or suspend a person from consideration for award of contracts in accordance with the Code;
determine whether the standards of responsibility have been met or are capable of being met;
determine if the contract is being performed in accordance with its terms; and
accomplish any other purpose permitted by law.

b) The presence or absence of an inspector shall not relieve the vendor or subcontractor from any requirements of the contract.

d) Inspection or testing of supplies and services performed at the plant or place of business of any vendor or subcontractor shall be performed so as not to unreasonably delay the work of the vendor or subcontractor.

e) On-site inspection of construction shall be performed, in accordance with the terms of the contract, provided that the CPO-HE's, SPO's or PCM's activities shall not be unduly restricted by any such contract provision.

History

Source: Amended at 43 Ill. Reg. 1781, effective February 15, 2019

44 Ill. Adm. Code 4.7020 Taxes, Licenses, Assessments and Royalties

a) The contractor shall pay all current and applicable city, county, State and federal taxes, licenses or assessments, including federal excise taxes, due on the performance of any contract, including, without limiting the foregoing, those required by the Federal Insurance Contribution Act (26 USC 3101 et seq.), the Federal Unemployment Tax Act (26 USC 3301 et seq.) and the State Unemployment Insurance Act [820 ILCS 405], together with all royalties due for any proprietary items. The contractor is exclusively liable for the payment of taxes to the respective governments. In the event the taxes, license, assessment or royalties, or any part thereof, are in the first instance charged to the university, the contractor shall, upon timely demand of the university, pay the university the amount of the tax, license, assessment or royalty due, plus all penalties that may have accrued.

b) The university is exempted by Section 3-5 of the Use Tax Act [35 ILCS 105/3-5] from paying any of the taxes imposed by that Act, and sales to the university are exempt by Section 2-5(11) of the Retailers' Occupation Tax Act [35 ILCS 120/2-5(11)] from any of the taxes imposed by that Act. The Illinois Department of Revenue, under 86 Ill. Adm. Code 130.2075(d), has declared that sale of materials to construction contractors for conversion into real estate for schools or charities are not taxable retail sales. A university making purchases of tangible personal property must provide its exemption numbers to vendors in order to receive an exemption from tax. Contractors making purchases from vendors of tangible personal property that will be incorporated into real estate owned by a university must present vendors with the university's exemption number and other required documentation in order to receive an exemption from tax.

c) Federal Excise Tax. Bidders must not include in their prices any allowance for payment under Federal Excise Tax if the university is exempt from those taxes. If an order or contract is awarded for the purchase of an item that is subject to the Federal Excise Tax, the university will furnish the vendor with an exemption certificate or number upon request.

History

Source: Amended at 36 Ill. Reg. 10951, effective August 6, 2012

Chapter II Chief Procurement Officer for Public Institutions of Higher Education

Part 4 Chief Procurement Officer for Public Institutions of Higher Education Standard Procurement

44 Ill. Adm. Code 4.7030 No Waiver of Sovereign Immunity

Nothing in this Part shall be deemed a waiver of sovereign immunity.

History

Source: Amended at 40 Ill. Reg. 456, effective January 15, 2016

Chapter III Chief Procurement Officer for the Department of Transportation

Part 6 Chief Procurement Officer for the Department of Transportation - Contract Procurement

44 Ill. Adm. Code 6.10 Authority

a) The Chief Procurement Officer (CPO) is established in the Illinois Procurement Code (Code) [30 ILCS 500] as the person appointed by the Secretary of Transportation with the consent of the majority of the members of the Executive Ethics Commission for all construction, construction-related and construction support services, operation of any facility, and the provision of any construction or construction-related service or activity committed by law to the jurisdiction of the Illinois Department of Transportation (Department), including the direct or reimbursable expenditure of all federal funds for which the Department is responsible or accountable for the use thereof in accordance with federal law, regulations or procedure. The CPO has the authority to appoint State Purchasing Officers (SPOs) to carry out the responsibility established in the Code. (See Sections 1-15.15 and 10-10 of the Code.)

b) With respect to construction, construction-related, and construction support services, the Department is charged by law with the responsibility for the construction, improvement, maintenance and operation of the State Highway System; the rehabilitation, improvement and construction of rail facilities; and the construction, improvement and maintenance of air navigation facilities either on behalf of the State or as agent for units of local government empowered to operate air navigation facilities. In addition, the Department may let contracts for highway construction on highway systems under the jurisdiction of local highway authorities as a condition of the receipt of federal-aid funds or as otherwise provided by law.

c) Procurements undertaken by the Department, as a construction agency and purchasing agency, and subject to the Code will be accomplished in accordance with this Part or the standard procurement rules adopted by the Chief Procurement Officer for General Services (CPO-GS) (see 44 Ill. Adm. Code 1) as indicated in the notice of the relevant procurement. All other procurements subject to the Code and committed to the authority of other Chief Procurement Officers will be conducted in accordance with the rules adopted by those Chief Procurement Officers. Procurements subject to the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] will be conducted, in all aspects and procedures, including but not limited to prequalification, publication, evaluation, selection, contract formation and amendment, and performance evaluation, in accordance with the Department's rules promulgated at 44 Ill. Adm. Code 625.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.20 Policy and Application

a) Policy

All Department contract procurements will be accomplished in the most economic and expeditious manner consistent with the principles and practices established in the Code. It is the policy of the CPO for the Department that all activities of the appointed SPOs and other designees related to the procurement process maximize the value of the expenditure of public funds in procuring contracts, and that those appointed and designated act in a manner that maintains public trust in the integrity of the process.

b) Application

This Part does not apply to intergovernmental agreements and contracts; grants; purchase of care agreements; collective bargaining agreements; purchase of real estate; contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations; and utility and railroad cost reimbursement agreements. (See Section 1-10(b) of the Code.)

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.30 Purpose and Policy Interpretations

This Part is promulgated to guide the CPO and appointed SPOs in implementing the procurement practices applicable to contract procurement established in the Code. All policy and operational interpretations will be made in a manner so as to secure the commercial needs of the State, to protect, safeguard and maintain the integrity of the procurement process, and to maximize the value of the expenditure of public funds. This Part is intended and designed to achieve practical, standard procedural uniformity for procurement undertaken by the CPO and appointed SPOs for the Department.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.40 Definitions

As used throughout this Part, terms defined in the Illinois Procurement Code have the same meaning as in the Code and as further defined in this Section. Each term listed in this Section has the meaning set forth as follows unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in that Section.

"Act" – Illinois Governmental Joint Purchasing Act [30 ILCS 525].

"Addenda" – A formal change to a Request for Qualification (RFQ) or Request for Proposal (RFP) during the advertisement period in response to prospective proposer questions or as needed to clarify the requirements of the RFQ or RFP.

"Alternative Technical Concepts" or "ATC" – A proposed deviation from the contract requirements set forth in the procurement documents for a Transportation Facility that offers a solution that is equal to or better than the requirements in the procurement documents. (Section 10 of the ITI Act)

"Amendment" – A written agreement signed by all parties, including a change order, that alters the terms of an existing contract.

"Best Value" – Any selection process in which proposals contain both price and qualitative components and award is based upon a combination of price, qualitative concepts, and other factors. (Section 10 of the ITI Act)

"Bid" – An offer made by a bidder in response to a contract item advertised in an Invitation for Bids.

"Bidder" – Any person or entity that in fact submits a bid.

"Bureau of Innovative Project Delivery" or "IPD Bureau" – The business unit of the Department established to identify, evaluate, and develop projects that may benefit from innovative approaches, including the use of various forms of project delivery allowable under law including CMGC, DB, PDB, and public-private partnerships.

"Candidate Project" – A project selected from the Multi-year Highway – Multimodal Improvement Program that is under consideration for delivery through CMGC, DB, or PDB.

"Candidate Projects List" – Projects deemed suitable for CMGC, DB, or PDB delivery through the IPD Program.

"Change Order" – 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 for completion for procurements subject to the jurisdiction of the Chief Procurement Officers appointed pursuant to Section 10-20. (Section 1-15.12 of the Code)

"Chief Procurement Officer" or "CPO" − The person appointed under Section 1-15.15(2) of the Code.

"Code" – Illinois Procurement Code [30 ILCS 500].

"Consensus Score" – A numerical score used to rank proposer's submissions, such as SOQs and proposals, that is determined collectively by the IPD Evaluation Committee.

"Construction Agency" – The Illinois Department of Transportation for construction or maintenance of roads, highways, bridges and airports as an agency that enters into construction contracts as authorized by law or by delegation from the CPO. (See Section 1-15.25 of the Code.)

"Construction Manager/General Contractor" or "CMGC Contractor" – A proposer that has entered into a Construction Manager/General Contractor contract with the Department under the ITI Act. (Section 10 of the ITI Act)

"Construction Manager/General Contractor Contract" or "CMGC Contract" – A two-phase contract between the Department and a Construction Manager/General Contractor that includes a first phase addressing preconstruction services and a second phase addressing the construction of the transportation facility. (Section 10 of the ITI Act)

"Construction Manager/General Contractor Project Delivery Method" or "CMGC" – A method of procurement and contracting that makes a Construction Manager/General Contractor who enters into a contract with the Department responsible for certain preconstruction services and then, if the parties reach agreement on key terms, responsible for construction of the transportation facility. (Section 10 of the ITI Act)

"Construction Oversight Team" or "COT" – The person, firm, corporation, organization, partnership or association, however organized, responsible for providing design reviews, construction acceptance, oversight of utility relocations, independent quality assurance surveys, independent material testing, documentation of construction, risk management, and oversight of construction activities, including construction management, maintenance of traffic, permit compliance, and other services which may include: value engineering, stakeholder coordination, or public involvement management, who is either part of the internal Department staff or procured as a consultant by the Department.

"Construction-related Professional Services" – Those services within the scope of the practice of architecture, professional engineering, structural engineering, or land surveying, as defined in the Illinois Architecture Practice Act of 1989 [225 ILCS 305], the Professional Engineering Practice Act of 1989 [225 ILCS 325], the Illinois Professional Land Surveyor Act of 1989 [225 ILCS 330], or the Illinois Structural Engineering Practice Act of 1989 [225 ILCS 340]. (Section 57 of the ITI Act)

"Construction-related Services" – Those services including design, layout, inspection, support, feasibility or location study, research, development, planning, or other investigative study undertaken by a construction agency concerning construction or potential construction. (Section 1-15.20 of the Code)

"Construction Support" – All equipment, supplies, and services that are necessary to the operation of a construction agency's construction program. Construction Support does not include construction-related services. (Section 1-15.20 of the Code)

"Contract" – In addition to the definition of contract set forth in Section 1-15.30 of the Code, a contract is the written agreement entered into at the discretion of the SPO between the Department and the contractor comprising such documents as set forth in each individual agreement, including change orders, contract adjustments, and renewals, and setting forth the obligations of the parties for the performance of the contract.

"Contract Adjustment" – A written price adjustment that adds to or deducts from a contract in accordance with provisions included in the original contract, including but not limited to increases or decreases in quantities, incentives, changed conditions and the addition of missing pay items called for in the specifications.

"Contract Documents" – The comprehensive set of documents that contain the commercial and technical requirements the project delivery partner must comply with. This includes the CMGC Contract, DB Contract, or PDB Contract and related exhibits, which may include the Technical Provisions, Developer Proposal, and other pertinent documents.

"Contractor" − Any person, firm, corporation, organization, partnership or association, however organized, and its affiliates, including its owners, directors, officers, partners, managers, key employees and others engaged in primary managerial or supervisory positions.

"Day" – A calendar day.

"Department" – The Illinois Department of Transportation.

"Design-build Contract" or "DB Contract" – A contract between the Department and a design-builder under which the design-builder agrees to furnish architectural, surveying, engineering, construction, and related services for a Transportation Facility. (Section 10 of the ITI Act)

"Design-build Project Delivery Method" or "DB" – A method of procurement and contracting that provides responsibility within a single contract between the Department and a design-builder for the furnishing of architectural, surveying, engineering, construction, and related services for a transportation facility. (Section 10 of the ITI Act)

"Design-bid-build Project Delivery Method" or "DBB" – The traditional method of procuring and contracting for design services and construction services used separately in this State that incorporates the QBS and the principles of competitive bidding under the Code. (Section 10 of the ITI Act)

"Design-Builder" – A proposer that has entered into a DB contract with the Department under the ITI Act. (Section 10 of the ITI Act)

"Electronic Procurement" – Conducting all or some of the procurement function over the internet. (Section 1-15.40 of the Code)

"Emergency Contract" – The initial written agreement for an emergency procurement.

"Emergency Statement" – The statement filed by the CPO with the Procurement Policy Board and the Auditor General setting forth the actual or estimated amount expended, the name of the contractor involved, and the conditions and circumstances requiring the emergency procurement. (See Section 20-30(c) of the Code.)

"Engineer of Record" or "EOR" – The person, firm, corporation, organization, partnership or association, however organized, responsible for signing and sealing the plans and specifications and provides design services throughout the project including Phase I design, Phase II design, and design support during construction, who is either part of the internal Department staff or procured as a consultant by the Department.

"Evaluation Criteria" – The standards and requirements established by the Department against which the qualifications and proposals of a proposer will be assessed during the procurement of a CMGC, DB, or PDB contract, as applicable. (Section 10 of the ITI Act)

"FHWA" – The Federal Highway Administration.

"General Contractor" or "GC" – Lead contractor under a CMGC contract responsible for self-performing construction phase services and supervising subcontractors during the construction services phase.

"Germane" – In relationship to the modification, alteration or amendment of the terms of a contract by change order, the term "germane" means a change that is related to the original terms of the contract but that is not so substantial a departure from the original as to constitute a new contract.

"Governmental Unit" – The State of Illinois, any State agency as defined in Section 1-15.100 of the Illinois Procurement Code, officers of the State of Illinois, any public authority that has the power to tax, or any other public entity created by statute. (Section 1-15.47 of the Act)

"Guaranteed Maximum Price" or "GMP" – A not-to-exceed price for construction of a project under a CMGC contract or PDB contract.

"Independent Cost Estimator" or "ICE" – The person, firm, corporation, organization, partnership or association, however organized, who provides independent cost estimates based on any given submittal received from the CMGC, DB, or PDB contractor, and is either part of the internal Department staff or procured as a consultant by the Department.

"Instructions to Proposers" or "ITP" – Procurement document issued with the RFP providing project specific instructions and requirements for proposers to submit a compliant proposal.

"IPD Bureau Chief" – Leads the day-to-day activities of the IPD Bureau and reports directly to the IDOT Director of the Office of Planning and Programming, which coordinates with and advances the goals and objectives of the Secretary for program development.

"IPD Evaluation Committee" – The committee assembled to evaluate and score statements of qualifications and proposals for projects under the IPD Program. (Section 10 of the ITI Act)

"IPD Program" – The collective activities and functions undertaken by the Department in the administration of CMGC, DB, and PDB projects under the ITI Act.

"ITI Act" – The Innovations for Transportation Infrastructure Act [630 ILCS 10].

"Lump Sum" − A fixed price for construction of a project based on plans and specifications under a CMGC contract or PDB contract.

"Master Contract" – A definite or indefinite quantity or requirements contract awarded in accordance with the Code, against which subsequent orders may be placed to meet the needs of the Department. A master contract may be for use by the Department or for multiple State purchasing entities and other entities as authorized under the Governmental Joint Purchasing Act. (Section 1-15.47 of the Code)

"Multiple Award" – An award that is made to 2 or more proposers, bidders or offerors for similar supplies, services, or construction-related services. (Section 1-15.48 of the Code)

"Multi-year Contract" – A multi-year contract is a contract with a time of performance of more than 12 months.

"Multi-year Highway – Multimodal Improvement Program" or "MYP" – The Department's improvement plan for Illinois’ transportation system within a proposed six-year period.

"No-cost Contract" – A contract in which the State of Illinois does not make a payment to, or receive a payment from, the vendor, but the vendor has the contractual authority to charge an entity other than the State of Illinois for supplies or services at the State's contracted rate to fulfill the State's mandated requirements. (Section 1-15.49 of the Code)

"Notice of Intent" or "NOI" − A written advertisement issued by the Department to inform industry of an upcoming procurement for a CMGC, DB or PDB project. The NOI will include a description of the proposed procurement and project to be procured.

"Offerors" – For purposes of this Part, includes only persons or entities submitting proposals that are acceptable or potentially acceptable. The term does not include persons or entities who submitted unacceptable proposals.

"Participant Procuring Entity" – Any entity, including any state, that actively contributes to the procurement, such as assisting in the development of specifications, being a member of the evaluation committee, being a required approver of the proposed award, or engaging in other similar activities that assist with a procurement.

"Phase I" – Preliminary engineering and environmental studies.

"Phase II" – Final design, preparation of construction contract and related documents, and right-of-way acquisition (if required).

"Phase III" – Construction and project commissioning.

"Piggyback Contract" – A form of cooperative purchasing through which the Department is extended the pricing and terms of a contract entered into by another state, another state agency or public department of this or any other state, the federal government, or a group purchasing organization.

"PPB" – The Procurement Policy Board created by Section 5-5 of the Code.

"Preconstruction Phase Services" – All non-construction-related services that a CMGC contractor or PDB contractor is required to perform during the first phase of a CMGC contract or a PDB contract, and may include, but is not limited to, giving advice to the Department regarding scheduling, work sequencing, cost engineering, constructability, cost estimating, and risk identification. (Section 10 of the ITI Act)

"Procurement Compliance Monitor" or "PCM" − The person appointed under Section 10-15 of the Code.

"Procurement Documents" – Encompasses the comprehensive set of documents that contain the commercial and technical requirements the project delivery partner must comply with. This includes but may not be limited to the Requests for Qualifications (RFQ), Instructions to Proposers (ITP), Request for Proposals (RFP), Technical Provisions (TP), and the contract.

"Procurement Engineer" or "PCE" – The person, firm, corporation, organization, partnership or association, however organized, responsible for providing preliminary engineering and procurement support services to the Department in the planning and execution of projects within the IPD Program, who is either part of the internal Department staff or procured as a consultant by the Department.

"Progressive Design-Build Project Delivery Method" or "PDB" – A type of Design-Build project delivery method that consists of 2 phases, with the first phase including budget-level design development, preconstruction services, and negotiation of a contract price (either lump sum or GMP). The second phase consists of final design, construction, and commissioning of the project by the PDB contractor under the PDB contract. (Section 10 of the ITI Act)

"Progressive Design-Build Contract" or "PDB Contract" – A contract between the Department and a Progressive Design-Build Contractor under which the Progressive Design-Build Contractor agrees to design, construct, and commission the project.

"Progressive Design-Build Contractor" or "PDB Contractor" – A proposer that has entered into a PDB contract with the Department under the ITI Act.

"Progressive Design-Build Project" or "PDB Project" – A project procured by the Department using the progressive-design project delivery method.

"Project Delivery Selection Report" – A report that documents the results of the screening process and readiness assessment to support the decision to include a candidate project in the candidate projects list.

"Proposal" – A response to a Request for Proposals.

"Proposer" – Any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity legally established to conduct business in this State that proposes to be the CMGC, DB, or PDB contractor for any transportation facility under the ITI Act. (Section 10 of the ITI Act)

"Purchasing Agency" – A State agency that enters into a contract at the direction of a State purchasing officer or a chief procurement officer. (See Section 1-15.70 of the Code.)

"QBS Act" – Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

"Qualifications Based Selection" or "QBS" – The evaluation and selection of a Proposer based solely on qualifications without consideration for price.

"Renewal" – An agreement between the parties to a contract to authorize an additional contract period under the terms and conditions of the renewal provision in the original contract.

"Request for Information" or "RFI" – The process of requesting information from interested parties to aid the State in decision making. An RFI is not a procurement method and does not result directly in the award of a contract.

"Request for Proposals" or "RFP" – The document issued by the Department to solicit proposals and describe the procurement process for a DB Contract, PDB contract or CMGC contract in accordance with the design-build project delivery method, Progressive Design-Build project delivery method or the Construction Manager/General Contractor project delivery method, as applicable. (Section 10 of the ITI Act)

"Request for Qualifications" or "RFQ" – The document issued by the Department in the first phase of a two-phase procurement to solicit qualifications from Proposers in accordance with the Design-Build project delivery method, Progressive Design-Build project delivery method or the Construction Manager/General Contractor project delivery method, as applicable. (Section 10 of the ITI Act)

"Responsible" – The capability, integrity and reliability of a bidder, offeror or contractor that, in all respects, will assure good faith performance to undertake and complete fully the requirements of a contract.

"Responsive" – In the context of bidding procedures, the compliance in all meaningful, material respects with the Invitation for Bids.

"Satisfactory Evidence of Compliance" – A bidder's or proposer's certification or other assurance of compliance in the contract bid proposal will constitute satisfactory evidence of compliance and will allow a bidder to be considered a responsible bidder or proposer on a construction contract under Section 30-22 of the Code.

"Secretary" – The Secretary of the Illinois Department of Transportation. (Section 10 of the ITI Act)

"Solicitation" – The document (e.g., RFQ or RFP) posted to the Bulletin requesting interested contractors or vendors to submit a statement of qualifications, or proposal for evaluation by the State. An RFI is not considered a solicitation.

"Special Provisions" – Additions and revisions to the Standard Specifications for Road and Bridge Construction and the Supplemental Specifications and Recurring Special Provisions (see the Department's website at http://www.idot.illinois.gov/transportation-system/transportation-management/planning/innovative-project-delivery/resources.html applicable to an individual contract.

"Specifications" – The body of directions, provisions, and requirements for performance of prescribed work. Specifications include and may be referred to as the Standard Specifications, which is a Department publication of specifications approved for general application and repetitive use.

"State Purchasing Officer" or "SPO" – The person appointed under Section 10-10 of the Code.

"Statement of Qualifications" or "SOQ" – A formal response to an RFQ submitted by interested parties seeking to compete for the right to receive an RFP and submission of a proposal.

"Stipend" – A payment made by the Department to unsuccessful proposers who submitted a compliant proposal in exchange for authorization for the Department to utilize the content of their proposal in further development of projects.

"Subcontract" – A contractual agreement between a person or entity and a person or entity who has a contract subject to the Code and this Part, pursuant to which the subcontractor assumes obligation for performing specified work. (See Section 1-15.107 of the Code.)

"Subcontractor" – A person or entity that enters into a contractual agreement with a total value of $50,000 or more with a contractor who has a contract subject to the Code. (See Section 1-15.108 of the Code.)

"Supplemental Specifications" – Additions and revisions to the Department's Standard Specifications.

"Transportation Facility" –Any new or existing facility or group of facilities that are the subject of a design-build contract, progressive design-build contract or a Construction Manager/General Contractor contract, and includes highways, roads, bridges, tunnels, overpasses, bus ways, guideways, ferries, airports or other aviation facilities, public transportation facilities, vehicle parking facilities, port facilities, rail facilities, stations, hubs, terminals, intermodal facilities, transit facilities, or similar facilities used for the transportation of persons or goods, together with any buildings, structures, parking areas, appurtenances, intelligent transportation systems, and other property or facilities related to the operation or maintenance of these facilities. (Section 10 of the ITI Act).

History

Source: Amended at 48 Ill. Reg. 10137, effective July 1, 2024

Chapter III Chief Procurement Officer for the Department of Transportation

Part 6 Chief Procurement Officer for the Department of Transportation - Contract Procurement

44 Ill. Adm. Code 6.50 Transportation Procurement Bulletin

a) The CPO, in consultation with the Department, possesses the rights to, and is the authority responsible for, publishing the Department's volume of the Illinois Procurement Bulletin. The Department's volume is entitled the "Transportation Procurement Bulletin" (Bulletin). (See Section 15-1 of the Code.)

b) The Bulletin is the published source for all Department procurement actions, notices and other information relevant to Department procurement activities undertaken pursuant to this Part, including but not limited to contracts offered in the Invitation for Bids, Requests for Proposals, other methods of source selection, contracts awarded, change orders, emergency purchases and sole source procurements.

c) The Bulletin may be published in subparts designed to enhance and focus the ability of users to find information relevant to the user's interest.

d) The Bulletin or any subpart thereof will be published or updated at least once each month but may be updated more frequently. (See Section 15-15 of the Code.)

e) Notice of all awarded contracts, including renegotiated contracts and change orders, will be posted on the Department's website the next business day. Notice will be posted and published in the Bulletin and will include the following:

the name of the successful responsible bidder or offeror;
the contract price;
the number of unsuccessful responsive bidders; and
any other disclosures, such as emergency purchase disclosures or any disclosure required under the Code.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.55 Required Notices

a) Notice of all awarded contracts entered into by the Department pursuant to Subpart D will be published in the Bulletin.

b) Notice of all solicitations are published in the Bulletin pursuant to Subpart D.

c) Notice of contracts let are published in the Bulletin pursuant to Subpart D.

d) Notice of contract renewals and change orders are published in the Bulletin pursuant to Subpart F.

e) The CPO or SPO will provide notice of emergency contracts and any hearings to extend any emergency contract in the Bulletin pursuant to Subpart C.

f) The CPO will provide a written description of the intent to enter into a sole source contract, along with a description of the item to be procured and the intended sole source contractor, in the Bulletin prior to entering into the sole source contract. The notice will be posted at least 14 days prior to the sole source hearing pursuant to Subpart C.

g) Notice of exempt contracts as required by Section 1-10 of the Code.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.60 Subscription Fees

The Department reserves the right to charge subscription fees in accordance with Section 15-15 of the Code. The Bulletin will be made available without charge to prequalified bidders, registered subcontractors, and offerors, and to public libraries within Illinois expressing interest. Access to detailed information contained in the Bulletin or any subpart may require additional fees.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.70 Direct Solicitation

Publication of the Bulletin or any subpart will not prohibit direct solicitation in addition to publication in order to enhance competition or interest of prospective contractors in particular procurements.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.80 Competitive Sealed Bids

Except for those circumstances and methods described in Sections 6.90, 6.100, 6.110, 6.120, and 6.122, all Department contracts will be procured by competitive sealed bidding in accordance with Section 20-10 of the Code and this Part. (See Section 20-5 of the Code.)

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.90 Competitive Sealed Proposals

a) Department contracts may be procured by competitive sealed proposals when the Department determines that competitive sealed bidding is either not practicable or not advantageous to the State. (See Section 20-15(a) of the Code.)

b) The determination to use competitive sealed proposals will be made in writing and provided to the CPO on either a contract-by-contract or a category of contracts basis.

"Practicable" Distinguished From "Advantageous." As used in this Subpart, the term "practicable" means that which may be accomplished or put into practical application, and "advantageous" means an assessment of what is in the State's best interest. Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest. Before a contract may be entered into by competitive sealed proposals, the Department will determine in writing that competitive sealed bidding is either not practicable or not advantageous to the State.
If competitive sealed bidding is not practicable or is not advantageous, competitive sealed proposals may be used. The competitive sealed proposal method differs from competitive sealed bidding in two principal ways. First, it permits discussions with competing offerors and changes in their proposals, including price. Second, it allows comparative evaluations to be made when selecting among acceptable proposals for award of the contract. Where evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, where the types of supplies or services may require the use of comparative evaluations to evaluate them adequately, or where the type of need to be satisfied involves weighing values other than price alone, or where prior procurement experience indicates that competitive sealed proposals may result in more beneficial contracts for the State, use of competitive sealed proposals is the appropriate procurement method.

c) Contracts for professional and artistic services are subject to and governed by the applicable Competitive Selection Procedures (44 Ill. Adm. Code 1.2035) adopted by the CPO-GS with the applicable oversight by the CPO-DOT.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.100 Small Purchases

a) The following procurements, when they do not exceed $100,000, may be made without notice, competition, or use of any other method of procurement prescribed in the Code or this Part:

Construction purchases;
Individual purchases for supplies or services from any one source;
Professional and artistic services for a nonrenewable term of not more than one year. (See Section 20-20(a) of the Code.)

b) Estimated needs shall not be divided in any manner to avoid the use of an established method of procurement. (See Section 20-20(a) of the Code.)

c) Determination of Small Purchase Status

In determining whether a contract is under the small purchase limit, the stated value of the supplies or services, plus any optional supplies and services, determined in good faith, shall be utilized. When the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a 12-month period.
If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not-to-exceed limit applicable to the type of procurement (see subsection (a)).
If, after signing the contract, the actual cost of completing the contract is determined to exceed the small purchase amount, and the SPO determines that a supplemental procurement is not economically feasible or practicable because of the immediacy of the agency's needs or other circumstances, the SPO must follow the procedures for sole source or emergency procurement, whichever is applicable, to complete the contract.

d) The CPO may establish policies and procedures regarding the use of the small purchase method of source selection to ensure compliance with policies, including promotion of small business, diversity and transparency.

e) Each April, the CPO will determine the CPI adjustment to the small purchase thresholds applicable to the next fiscal year. If the CPI is greater than zero, the thresholds identified in Section 20-20(a) of the Code will be reduced in the amount that, with the CPI increase, would result in the small purchase thresholds remaining as stated in Section 20-20(a) of the Code. The CPO and the Procurement Policy Board will review the small purchase thresholds to determine if a modification to the thresholds is needed, and will do so within five years starting July 1, 2019. This review may occur sooner at the call of the CPO or the Procurement Policy Board.

f) This Section does not apply to construction-related professional services contracts awarded in accordance with the provisions of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.110 Sole Source and Sole Economically Feasible Source Procurement

a) Application

A contract may be procured from a single source without competition or use of any other method of procurement prescribed in the Code or this Part when the single source is the only economically feasible source capable of providing the services, including professional and artistic services, contemplated or the material or product to be supplied. (See Section 20-25 of the Code.)

b) Conditions for Use of Sole Source and Sole Economically Feasible Source Procurement Method

Sole source procurement is permissible when a requirement is available from only a single supplier. Sole economically feasible source is permissible when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if more than one vendor is authorized to provide that item. The following are examples of circumstances that may necessitate sole source and sole economically feasible source procurement, but are not exhaustive:

when the compatibility of equipment, accessories, replacement parts, or service is a primary consideration;
when trial use, testing or the development of new technology is the object of the procurement;
when a sole supplier's item is to be procured for commercial resale;
when utility services are to be procured;
when the surety providing a performance bond tenders a completion contractor, acceptable to the Department, to complete a defaulted contract;
when the item is copyrighted or patented and the item is not available except from the holder of the copyright or patent or service area licensee.

c) As soon as a need is identified by the Department, the SPO must be contacted to determine the appropriate procurement method. The final determination as to whether a procurement shall be made as a sole source or sole economically feasible source procurement shall be made by the SPO, based on a request made by the Department. The request shall be in writing on a form prescribed by the PPB and shall include the basis for the sole source or sole economically feasible source determination. Prior to authorizing the Department to enter into a contract based on the sole source or sole economically feasible source request, the CPO shall offer to conduct a public hearing and make a final determination as required by Section 20-25(a) of the Code. Any request for hearing must be made at least 5 calendar days prior to the date of the scheduled hearing. If no request for hearing is made, the hearing will be cancelled. No sole source or sole economically feasible source procurement may proceed without final approval by the CPO.

d) When an interested party submits a written request for a public hearing, the CPO will provide notice of intent to contract on a sole source basis to the PPB and publish the notice in the Bulletin at least 14 days prior to the public hearing required in Section 20-25(a) of the Code. The notice will include the sole source procurement justification form prescribed by the PPB, a description of the item to be procured, the intended sole source contractor, and the date, time and location of the public hearing. (See Section 20-25 of the Code.)

e) The CPO may hold a public hearing in accordance with Section 20-25(a) of the Code.

Prior to the execution of a sole source contract, the CPO may hold a public hearing and provide written justification for the sole source contract. The Department will also provide written justification for the sole source contract.
Any interested party may present testimony at the public hearing.
A sole source contract, when a public hearing was requested by an interested party, may be awarded, after the public hearing is conducted, with the approval of the CPO. Approval of the CPO will be granted in accordance with the Code and this Part.
A copy of all procurement documents provided at the hearing will be included in the Bulletin, along with the decision of the CPO to award or not award the sole source contract.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.120 Emergency Purchases

a) A contract may be procured without the use of any other method of procurement prescribed in the Code or this Part when there exists a threat to public health or safety, or when an immediate contract is needed to repair State property in order to prevent or minimize further loss or damage to State property, or to prevent or minimize serious disruption in critical State services that affect health, safety or collection of substantial State revenues, including but not limited to completion of a defaulted contract, or to ensure the integrity of State records. (See Section 20-30(a) of the Code.)

b) The term of an initial emergency contract will not exceed 90 days as the time reasonably needed for a competitive procurement. For the initial emergency contract:

The emergency contract will provide a written description of the basis for the emergency and reasons for the selection of the particular contractor to be included in the contract file. (See Section 20-30(a) and (c) of the Code.)
Notice of the emergency contract will be provided to the PPB and published in the Bulletin no later than 5 calendar days after the contract is awarded. For purposes of this Section, "contract is awarded" means that the contractor has received notification to proceed, which may be oral, and has started the work.
Within 10 days after the procurement, the emergency statement will also be posted to the Bulletin and filed with both the PPB and the Auditor General. (See Section 20-30(c) of the Code.) For purposes of this Section, "procurement" means that the contractor has received notification to proceed, which may be oral, and has started the work.

c) An emergency contract may be extended beyond 90 days if the CPO determines additional time is necessary and that the contract scope and duration are limited to the emergency. The CPO will hold a public hearing in accordance with Section 20-30(a) of the Code.

Prior to the execution of an extension past 90 days, the CPO will hold a public hearing and provide written justification for the emergency contract. The Department may also provide written justification for the emergency contract.
Notice of the hearing will be posted at least 14 calendar days prior to the emergency contract extension hearing date and prior to the expiration of the 90-day term of the initial emergency contract. The notice will include a description of the need for the emergency contract extension, the contractor, and the date, time and location of the public hearing.
The PPB and members of the public may present testimony at the public hearing.
A copy of the notice and documents provided at the hearing will be included in the Bulletin, along with the decision of the CPO to extend or not extend the emergency contract.

d) For purposes of this Section, State property includes all property both real and personal. State records include all records regardless of the form of storage. State services include, but are not limited to, all activities committed by law to the jurisdiction or responsibility of the Department, whether provided directly or indirectly by means of contract or intergovernmental agreement.

e) The Department will employ such competition as is practicable under the emergency circumstances to abate the emergency situation, including the use of existing contracts.

f) Emergency contracts are exempt from the requirements of Section 20-80(d) of the Code as long as notice is filed with the PPB and published in the Bulletin, as required.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.122 Requests for Information

a) When the Department does not have sufficient information, including, but not limited to, available supplies, products, or services, to issue a solicitation, the Department, in consultation with the SPO, may issue a request for information (RFI). Public notice of the RFI shall be published in the Bulletin at least 14 days before the date set for the receipt of information. The submission of information by a vendor in response to an RFI is not a prerequisite for that vendor to respond to a subsequent solicitation for which information was solicited, and the issuance of an RFI does not commit the Department to make any procurement of any kind.

b) RFI responses are subject to the Illinois Freedom of Information Act (FOIA) [5 ILCS 140]. Responses that contain confidential information or trade secrets may be exempted from disclosure under FOIA. (See Section 7(1)(g) of FOIA.) The Department may assert this exemption provided the respondent furnishes the Department with both a redacted and unredacted copy of his/her response.

c) An RFI is to be used for information gathering only and is not a vehicle for procuring supplies or services.

History

Source: Added at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.124 Joint Purchasing

a) The CPO may authorize the Department to jointly purchase supplies and services with:

a governmental unit of this State;
a governmental entity of another state;
a consortium of governmental entities of one or more states; or
any not-for-profit agency that qualifies under Section 45-35 of the Code and that either:

A) acts pursuant to a board established by or controlled by a unit of local government; or

B) receives grant funds from the State or from a unit of local government.

b) If the State is the lead state, all joint purchases shall be conducted in accordance with the Code and this Part. Multiple awards are allowed.

c) If the State is a participant procuring entity, all joint purchases shall be conducted in accordance with the procurement laws of the lead state.

d) All joint procurements shall be by competitive solicitation except when the CPO determines:

there is only one economically feasible source for the item; or
that a threat exists to the public health or safety or that immediate expenditure is necessary to prevent or minimize serious disruption in critical State services.

e) All awards shall be published in the Bulletin in accordance with the Code.

f) The CPO may designate contracts made through a joint purchase as available to other governmental units in Illinois.

g) If any contract or amendment to a contract is entered into or purchase or expenditure of funds is made at any time in violation of the Act or any other law, the contract or amendment may be declared void by the CPO or may be ratified and affirmed if the CPO determines ratification to be in the best interest of the Department.

History

Source: Added at 44 Ill. Reg. 6222, effective April 8, 2020

Chapter III Chief Procurement Officer for the Department of Transportation

Part 6 Chief Procurement Officer for the Department of Transportation - Contract Procurement

44 Ill. Adm. Code 6.125 Small Business Set-Asides (renumbered)

History

Source: Section 6.125 renumbered to Section 6.801 at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.126 Piggyback Contracts

a) The CPO may authorize the purchase or lease of supplies and services that have been procured through a competitive process by:

a federal agency;
a consortium of governmental, educational, medical, research, or similar entities; or
a group purchasing organization of which the CPO or Department is a member or affiliate.

b) Contracting Requirements

To piggyback a contract from another entity, the underlying contract must include language allowing other governmental units to utilize the contract.
The original contracting entity shall be contacted and advised of the intended piggyback contract and, if necessary, discussions shall be held as to concerns about any potential for diminution of supply or lack of vendor capacity to provide supplies or services.
The Department shall obtain from the original contracting entity, and include as part of its procurement file, the following:

A) Solicitation;

B) Bid tabulation or evaluation with the reason for award;

C) Copy of the winning bid or proposal; and

D) Copy of the contract.

c) Prior to utilization, all piggyback contracts shall be submitted to the CPO for review and approval and notice of the award shall be published in the Bulletin.

d) The Department is not required to participate in the procurement activity prior to an award.

e) The CPO may authorize purchases and contracts that have been procured by other methods of procurement if, upon recommendation of the Department, the CPO determines it is in the best interests of the State.

f) If any contract or amendment to a contract is entered into, or purchase or expenditure of funds is made, at any time in violation of the Act or any other law, the contract or amendment may be declared void by the CPO or may be ratified and affirmed if the CPO determines ratification to be in the best interest of the Department.

History

Source: Added at 44 Ill. Reg. 6222, effective April 8, 2020

Chapter III Chief Procurement Officer for the Department of Transportation

Part 6 Chief Procurement Officer for the Department of Transportation - Contract Procurement

44 Ill. Adm. Code 6.130 General Conditions for Use

The procedures set forth in this Subpart D will be used for all contracts procured by the CPO through the use of competitive sealed bids.

44 Ill. Adm. Code 6.140 Invitations for Bids

a) The process for procuring a contract by competitive sealed bids begins with the issuance of an Invitation for Bids by publication in the Bulletin not less than 14 days prior to the date set for the opening of bids. (See Section 20-10(c) of the Code.)

b) The Invitation for Bids may include more than one contract item and will include the following minimum requirements.

Instructions and information to potential bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the office to which bids are to be delivered, the maximum time for bid acceptance, certifications and assurances, mandatory disclosures, and any other special information. The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where such documents can be obtained.
A purchase description for each contract item, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description.
The contract terms and conditions, including warranty and bonding or other security requirements, as applicable.
The Invitation for Bids may provide a form that will specify or organize the manner of price submission and that the bidder shall sign and submit along with all other necessary submissions, including disclosure forms.

c) For procurements of construction, the Invitation for Bids also will include information and instructions for obtaining all contract specifications, special provisions, plans for the construction contract work and bid forms for individual contract items. Bidders for construction contracts are required to have Authorization to Bid issued in accordance with the Department's rules for Prequalification of Contractors, Authorization to Bid, and Subcontractor Registration found at 44 Ill. Adm. Code 650.

d) In addition, each construction contract item will include but not be limited to the following minimum information and requirements enforceable in accordance with State or federal law through the terms and conditions of the contract.

Information concerning the location, limits and description of the construction work and the scope thereof contemplated by the contract.
An estimate of the various quantities of the type of work to be performed and the materials to be furnished in the performance of the contract.
The manner of bid price submission for a construction contract may include lump sum, a schedule of unit prices or a combination thereof based upon the estimate of quantities provided in the contract.
The manner of making changes in the quantities and such alterations in the work as necessary to satisfactorily complete the contract.
Provisions to assure that all work is performed in accordance with the contract requirements including but not limited to the following methods.

A) Limitations on subcontracting;

B) Qualifications and requirements for contractor supervisory personnel;

C) Engineering services to be provided by the contractor;

D) Department provided resident personnel and inspectors;

E) Performance and payment bond requirements;

F) Inspection and acceptance of the work requirements;

G) Restrictions, sources and quality requirements for all materials and testing or inspection procedures;

H) The method of determination and documentation of pay quantities and a record of the materials, supplies and labor furnished in performance of the contract;

I) The manner of determining satisfactory prosecution of the work and progress to completion of the work in accordance with the time for completion set out in the contract including, when incorporated into the contract, provisions for liquidated damages and incentive payments for early completion; and

J) Provisions for the suspension of work and the termination of the contract.

All labor, employment and wage requirements applicable to the contract, and the manner of payroll recording, submission and inspection. (See the Prevailing Wage Act [820 ILCS 130] or the Davis-Bacon Act (40 USC 3141).)
All procurement preferences made applicable to the contract. (See Article 45 of the Code.)
The manner of measuring the work for payment based upon the estimated quantities provided or upon the actual quantities of material and work measured and completed including but not limited to progress payments as the work proceeds, and final payment.

History

Source: Amended at 37 Ill. Reg. 19098, effective November 15, 2013

44 Ill. Adm. Code 6.150 Amendments to Invitations for Bids

Invitations for Bids may be supplemented, by publication in the Bulletin, with additional contract items, amended instructions, information, or extensions of any times stated in the invitation. Contract items may be subject to amendment. Amendment to contract items may require that the bidder acknowledge receipt of all amendments issued. Each amendment will reference the contract item it amends. Amendments will be published in the Bulletin. It is the bidder's responsibility to determine which, if any, addenda or revisions pertain to any project the bidder may be bidding on.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.160 Preparation of Bids

a) Bidders shall follow all instructions included in the Invitation for Bids and bid forms for submission of bids on the contract item for which bids are sought.

b) Bidders shall submit their bids in the manner required by the Invitation for Bids.

c) Unless otherwise provided, all prices shall be given in dollars and cents. Separate prices shall be entered for all pricing items indicated in the bid form. When alternate bids are sought for a particular contract item, the alternates will be identified in the bid form. A bid on every alternate is not required unless otherwise specifically provided. When required by the Invitation for Bids, the bidder shall indicate a unit price for each of the separate price items called for in the bid form. The bidder may be required to show the products of the respective quantities and unit prices in a space provided for that purpose, and a gross sum shown in the place indicated in the bid form as the summation of those products. All writing shall be in a permanent, noneraseable form, except the signature of the bidder, which shall be written in permanent, noneraseable ink. Electronic signatures will be accepted for electronically submitted bids in accordance with the security standards established by the Department of Central Management Services. (See 5 ILCS 175/25-101(c) and 14 Ill. Adm. Code 105.300.)

d) When required by the Invitation for Bids, each bid shall be accompanied by a bid bond in the form provided by the Department with the bid form package. The bid bond shall be made and tendered by a surety acceptable to the CPO in the amount stated in the Invitation for Bids. The Department will accept a bank cashier's check or a certified check in lieu of a surety bid bond.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.170 Delivery of Bids

Bids shall be sealed and submitted in the manner specified or allowed by the Invitation for Bids. When sent by mail, the sealed bid shall be addressed to the CPO at the address and in care of the official in whose office the bids are to be received. All bids shall be delivered and received by the CPO prior to the time and at the place specified in the Invitation for Bids. The date and time of receipt will be recorded. Bids will remain sealed and will be stored in a secure place until the date and time established for bid opening. The Department will not accept paper bids nor receive electronic bids after the time stated in the Invitation for Bids.

History

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

44 Ill. Adm. Code 6.180 Change or Withdrawal of Bids

An authorized agent of a bidder may change or withdraw a bid if written or in-person notice of the change or withdrawal is received by the Department before the time specified for submission of bids. No change or withdrawal is allowed after bid opening except as provided in Section 6.230. Changes must be initialed in ink by the bidder. (See Section 20-10(f) of the Code.)

History

Source: Amended at 40 Ill. Reg. 6693, effective April 7, 2016

44 Ill. Adm. Code 6.190 Combination Bids for Construction Contracts

a) A combination bid is a total bid received on two or more contract items. No combination bids other than those specifically established by the Department will be considered. Separate bid forms will be issued for each contract item in the combination. Bids may be submitted on the combination as well as on the separate contract items of the combination. The CPO reserves the right to make awards on combination bids or separate contract item bids.

b) If a combination bid is submitted on two or more contract items, separate bids on each individual contract shall also be submitted, and unless separate bids are so submitted the combination bid will not be considered. If the bidder intends to submit a combination bid, the bidder shall state, in the place provided in the bid form, the amount of the combination bid for the entire combination.

c) If a combination bid is submitted on any stipulated combination, and errors are found to exist in computing the gross sum bid on any one or more of the individual bids, corrections will be made by the CPO and the amount of the combination bid will be corrected so that it will be in the same proportion to the sum of the corrected gross sum bid as the combination bid submitted was to the sum of the gross sum bid submitted.

d) The following provisions govern combination bidding:

When a combination bid is submitted and awarded for two or more contract items, the combination bid price will be prorated against each contract item in proportion to the bid price submitted for each individual contract item.
Separate contracts will be executed for each individual contract item included in the combination.
The completion time for all contracts awarded on a combination bid will be the latest completion time designated in any of the contracts included in the combination, unless otherwise provided in the contracts.

44 Ill. Adm. Code 6.200 Pre-Bid Conferences

Pre-bid conferences may be conducted to enhance understanding of the procurement requirements. They will be announced in the Bulletin. The conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with the project, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Only the written minutes of the conference shall be binding. Nothing stated in the pre-bid conference shall change the Invitation for Bids unless a change is made by written amendment to the Invitation for Bids. Minutes of the conference will be available upon request to all those prospective bidders known to have received an Invitation for Bids. If the conference is mandatory, the minutes shall be supplied to attendees only.

History

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

44 Ill. Adm. Code 6.210 Public Opening of Bids

a) Bids shall be opened publicly or through an electronic procurement system at the time and place specified in the Invitation for Bids. (See Section 20-10(d) of the Code.)

b) The name of each bidder and the price term of each bid will be read aloud and/or recorded in a tabulation of bids for each contract item advertised.

c) After execution of the contract, the tabulation of bids in the total amount and unit price items, if applicable, of all bidders will be available for public inspection.

d) The Department or CPO may postpone a bid opening if unforeseen circumstances arise (e.g., severe weather, natural disaster, power or network outage).

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.220 Consideration of Bids

a) After the bids are opened and recorded, the bids will be reviewed for responsiveness to the Invitation for Bids, conformity with all requirements prescribed in this Part, and satisfactory evidence of compliance. If unit prices are required, the bids will be compared on the basis of the summation of the products of the quantities shown in the bid schedule by the unit bid prices.

b) The right is reserved by the Department to reject any or all bids, to waive minor informalities or technicalities, to advertise for new bids, or to request confirmation or clarification from any bidder regarding information contained in a bid.

c) Reasons for rejection of all bids include but are not limited to:

The object of the contract being procured is no longer required.
The contract provisions require amendment.
The solicitation did not provide for consideration of all factors of significance to the Department.
The bid prices exceed available funds or the bid prices exceed the anticipated estimate of costs to the extent that, in the judgment of the Department, prices are unreasonable.
Evidence of collusion among bidders.
Actions or events beyond the control of the Department, such as strikes, acts of God, material shortages, acts of the public enemy or litigation, would have an adverse effect on the completion of the anticipated contract.

d) Reasons for rejection of any individual bids include but are not limited to:

More than one bid for the same contract item from a bidder under the same or different names.
Evidence of collusion among bidders.
Unbalanced bids in which the bid prices for some items are, in the judgment of the Department, out of proportion to the bid prices for other items.
If the bid does not contain a unit price for each pay item listed, except in the case of authorized alternate pay items or lump sum pay items.
If the bid form is other than that furnished or authorized by the Department, or if the form is altered or any part of the form is detached.
If there are omissions, erasures, alterations, unauthorized additions, conditional or alternate bids, or irregularities of any kind that may tend, in the judgment of the Department, to make the bid incomplete, indefinite, or ambiguous as to its meaning.
If the bidder adds any provisions reserving the right to accept or reject an award, or to enter into a contract pursuant to an award.
If the bid is not accompanied by the proper bid bond or substitute guaranty.
If the bid is prepared in any manner other than as indicated in this Part or the Invitation for Bids making the bid not responsive.
If the bidder failed to incorporate relevant addenda or revisions.
Failure to submit a Disadvantaged Business Enterprise (DBE) utilization plan in accordance with any special provisions, special notices, or bid documents.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.230 Mistakes

a) If a bidder claims a mistake in its bid, the bid may be withdrawn in accordance with this Section without payment of damages to the Department as provided in the terms of a bid bond or other bid security, provided the bidder claiming the mistake demonstrates to the CPO with competent and reliable evidence:

that the claimed mistake is related to a material feature of the contract;
that the mistake would have serious, material consequences to the bidder such that enforcement of a contract would be unconscionable;
that the mistake occurred notwithstanding the exercise of reasonable care by the bidder; and
that the bidder has raised the claim of a mistake without delay in order to prevent the CPO from altering its position in such a manner that loss to the State would occur.

b) The CPO reserves the right to correct obvious, apparent errors in bids. A bid may not be withdrawn if a mistake is apparent and the intended correct bid is clearly evident on the face of the bid. Examples of mistakes that may be clearly evident on the face of the bid include but are not limited to typographical errors, errors in extending unit prices, transposition errors, and arithmetic errors.

c) Mistakes claimed after execution of the contract will not be corrected.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.240 Award After Bid Evaluation

a) Unless all bids are rejected, an award notification will be made to the lowest responsible bidder whose bid is responsive to and conforms with the requirements and criteria of the invitation. Tie bids will be decided by lot. All responsibility, responsiveness, and price factors are considered so as to select the bid most advantageous to the State. An individual contract item advertised in an Invitation for Bids may state other, additional award and evaluation criteria that will be capable of objective consideration for award. (See Section 20-10(g) of the Code.)

b) Responsibility of bidders for construction contracts is determined in accordance with the Department's rules for Prequalification of Contractors, Authorization to Bid, and Subcontractor Registration found at 44 Ill. Adm. Code 650.

c) For nonconstruction contracts, the responsibility of bidders will be determined based upon the following factors unless some other or additional factors or prequalification procedures are stated in the Invitation for Bids.

The bidder shall possess the appropriate financial, material, equipment, facility and personnel resources and expertise necessary to meet all contractual obligations.
The bidder shall have a satisfactory record of performance, including but not limited to a sound record of integrity and business ethics.
The bidder shall be under no legal disability of any kind to contract with the State.
The bidder shall have submitted all information requested by the Invitation for Bids concerning responsibility.

d) Federal aid contract awards, or proposals by the Department or CPO to reject all bids, are subject to the concurrence of the Federal Highway Administration Division Administrator for Illinois pursuant to 23 CFR 635.114(a) and (h). 23 CFR 635.114(a) and (h) are incorporated by reference as those sections were in effect as of April 1, 2011. No later amendments or editions are incorporated. Copies of the appropriate material are available from the Chief Procurement Officer, Executive Ethics Commission, Illinois Department of Transportation, 2300 S. Dirksen Parkway, Room 200, Springfield, Illinois 62764 or by calling 217/558-5434.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.250 Split and Multiple Awards

a) The CPO may advertise a contract for a potential split award of a definite quantity requirement between two or more bidders. The Invitation for Bids will advise of the reservation of split awards and the basis for dividing the award.

b) The CPO may advertise a contract for multiple award of an indefinite quantity when two or more contractors are necessary for adequately meeting the Department's needs. The Invitation for Bids will advise of the reservation of multiple awards.

44 Ill. Adm. Code 6.260 Time for Award

Unless the Invitation for Bids specifies a different time for bid acceptance, a notification of award will be made in writing dated within 45 calendar days after the opening of bids.

44 Ill. Adm. Code 6.270 Delay in Award

Should circumstances be encountered after bid opening that may delay award beyond the 45 day or other advertised period, the responsive bidders may be requested to extend the bid acceptance period.

44 Ill. Adm. Code 6.275 Notice of Award

a) Notice of the Department's intent to award a contract, with concurrence of the SPO, pursuant to this Subpart D will be published in the Bulletin.

b) When the SPO determines that it is not in the best interest of the State to award to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids, the SPO will provide, by written explanation, for the determination that another bidder will receive the award. The written explanation will be filed with the Legislative Audit Commission and the PPB. It will also be available to the public within 30 days after the decision to award the contract. The written explanation must include:

A description of the Department's needs;
A determination that the anticipated cost will be fair and reasonable based on engineering estimates;
A listing of all evaluated responsible and responsive bidders; and
The name of the bidder selected, pricing, and the reasons for selecting that bidder. (Section 20-10(g) of the Code)

History

Source: Added at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.280 Binding Contract

a) Once an award has been made, the bidder is bound to perform according to the terms and conditions of the contract, the Invitation for Bids and this Part.

b) An approved contract executed by the CPO is required before the State is bound. An award may be canceled any time by the CPO prior to execution in order to protect the public interest and integrity of the bidding process or for any other reason if, in the judgment of the CPO, the best interests of the State will be promoted.

44 Ill. Adm. Code 6.290 Requirement of Contract Bond for Construction Contracts

The successful bidder awarded a construction contract shall furnish the Department a performance and payment bond with good and sufficient sureties in the full amount of the contract as the penal sum. (See the Public Construction Bond Act [30 ILCS 550].) The surety shall be acceptable to the CPO, shall waive notice of any changes and extensions of time, and shall submit its bond on the form furnished by the CPO. Performance security for other contracts shall be as stated in the Invitation and contract.

44 Ill. Adm. Code 6.300 Execution of Contracts

a) No contract subject to this Subpart D will be executed until the 14-day PPB notice period has expired or the Department has received a waiver of the 14-day notice period from the PPB. (See Section 5-30 of the Code.)

b) The bid form submitted by the bidders may be in such a form that the signature of the bidder on the form is also the signature of the bidder for purposes of contract execution. In such circumstances, the Department will, after acceptance and approval of the bid for contracting purposes, execute the contract and return a copy to the bidder.

c) If the contract as bid requires additional execution by the bidder, the contract shall be executed by the successful bidder and returned, together with any required contract bond, within 15 days after the contract has been mailed to the bidder. Failure of the successful bidder to execute the contract and file acceptable bonds within 15 days after the contract has been mailed to the bidder is cause for the cancellation of the award and the forfeiture of the proposal guaranty. If the contract is not executed by the Department within 30 days following receipt from the bidder of the properly executed contract and bond, the bidder shall have the right to withdraw the bid without penalty.

d) The CPO or the SPO will execute the contract to demonstrate approval of the procurement process.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.310 Publication of Contracts (repealed)

History

Source: Repealed at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.320 General Conditions for Use

The procedures set forth in this Subpart E will be used for all contracts procured by the CPO by competitive sealed proposals supported by a written determination provided to the CPO that competitive sealed bidding is not practicable or not advantageous. (See Section 20-15(a) of the Code.)

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.330 Request for Proposals

a) The process for procuring a contract by competitive sealed proposals begins with the issuance of a Request for Proposals by publication in the Bulletin not less than 14 days before the date set in the request for the opening of proposals. (See Section 20-15(b) and (c) of the Code.)

b) The Request for Proposals will include the following elements that may be adapted to accomplish the objectives of the Department.

A general description of the type of service needed.
A general description of the nature of the work and its relationship to the objectives of the Department.
The anticipated starting date and duration of the contract.
A general description of the final product to be produced or service to be rendered.
A detailed description of the work of the project that also discloses a summary of any preliminary work that has been done, and any special conditions affecting the performance of the work, including but not limited to location, licenses, skills required and materials to be supplied. In addition, a timetable for performing the work, including reporting requirements, may be included or instructions for the offerors to provide an acceptable timetable may be specified.
A description of the required format for a proposal, including some or all of, but not limited to, the following elements:

A) Technical Proposal: A document describing in detail how the work will be accomplished, including any services that would be provided through a subcontract.

B) Staffing: A summary of the qualifications of the individuals who would be assigned to the project, a general account of experience in the field of work, and a list of current and anticipated contracts that could require the involvement of the project staff during the term of the Department's contract.

C) Cost Estimate: When the project is federally-funded, a detailed estimate of direct and indirect costs of accomplishing the work. When the project is not federally-funded, the Request for Proposal will indicate when and how price will be submitted.

D) Samples of Previous Work: Copies of reports, manuals, plans, etc., that are closely related to the type of services needed.

E) A statement of any additional requirements.

A description of the evaluation factors that will be used to evaluate and rank the proposals, and the relative importance of price to the evaluation factors. (See Section 20-15(e) of the Code.)
A name and phone number of the responsible Department office, and the official mailing address, date and time for submission of the proposal and supporting documents.
For any federally-funded contract that is expected to exceed $50,000 in cost, a notification that fiscal information may be required prior to an award detailing the offeror's accounting system, payroll burden, fringe expenses, and general and administration overhead expense percentage rating for purposes of a pre-contract audit.
A statement, for nonfederally-funded contracts, of when and how price will be submitted.
A statement that discussions may be conducted with offerors that submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted and evaluated, and that an award may be made and contract executed without discussions.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.340 Delivery of Proposals

a) Proposals shall be sealed and submitted in the manner specified or allowed by the Request for Proposals. When sent by mail, the sealed proposal shall be addressed to the official mailing address specified in the request. All proposals shall be delivered and received by the Department prior to the time and at the official address specified in the Request for Proposals. Proposals received after the time specified will be returned to the offeror unopened. The date and time of receipt will be recorded. Proposals will be held in a secure place until the established due date. After the date and time established for receipt of proposals, a register of proposals will be prepared that will include for all proposals the name of each offeror and a description sufficient to identify the supply or service item offered. The register of proposals is open to public inspection after award of the contract. Proposals will be maintained in a confidential manner during the period prior to execution of a contract. (See Section 20-15(f) of the Code.)

b) Proposals will be opened publicly or via an electronic procurement system in the presence of at least one witness at the time and place indicated, but contents of individual proposals will not be disclosed.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.350 Evaluation of Proposals

a) The evaluation is based on the evaluation factors set forth in the Request for Proposals. Numerical rating systems may be used but are not required. Factors not specified in the Request for Proposals will not be considered. For purposes of conducting discussions with responsible offerors and for revision of proposals, proposals may be initially classified as:

acceptable;
potentially acceptable, that is, reasonably susceptible of being made acceptable; or
unacceptable.

Offerors whose proposals are unacceptable will be so notified.

b) Except for federally-funded contracts, proposals will be evaluated on all particulars independent of price.

c) For federally-funded contracts, a pre-discussion audit may be performed to provide the necessary data to assure that the offeror has an acceptable accounting system, adequate and proper justification of the various rates charged to perform the work and is aware of federal cost eligibility and documentation requirements. Pre-discussion audits and the resultant audit opinions are required for all contracts expected to exceed $250,000 and for all contracts of less than $250,000 where:

there is insufficient knowledge of the offeror's accounting system;
there is previous unfavorable experience regarding the reliability of the offeror's accounting system; or
the contract involves the procurement of new equipment or supplies for which cost experience is lacking.

Pre-discussion audits may be waived when sufficient audited data is available to permit reasonable comparisons with the cost proposal.

44 Ill. Adm. Code 6.360 Discussions with Responsible Offerors

a) Purposes of Discussions. Discussions may be held to promote understanding of the Department's requirements and the offerors' proposals, and to facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the Request for Proposals. (See Section 20-15(f) of the Code.)

b) Conduct of Discussions. Offerors will be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. If during discussions there is a need for any substantial clarification of or change in the Request for Proposals, the Request shall be amended to incorporate such clarification or change and all offerors advised accordingly. Revealing one offeror's price to another and disclosure of any information derived from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror. (See Section 20-15(f) of the Code.)

c) Best and Final Offers. The Department may establish a common date and time for the submission of best and final offers. The Department may conduct additional discussions or change the State's requirements and require another submission of best and final offers. If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediately previous offer will be construed as its best and final offer.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.370 Award

a) An award will be made pursuant to a written determination by the SPO, retained in the procurement file, showing the basis on which the award was found to be most advantageous to the State, based on the factors set forth in the Request for Proposals, and taking into consideration price. (See Section 20-15(g) of the Code.)

b) Nothing shall compel the award of a contract. Contract execution will be as specified in the Request for Proposals. A solicitation may be canceled at any time when such action is determined in the sole judgment of the Department to be in the best interest of the State.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.380 Execution of Contracts

No contract subject to this Subpart E will be executed until the 14-day PPB notice period has expired or the Department has received a waiver of the 14-day notice period from the PPB.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.385 Expenditure in Excess of Contract Price

a) No funds in excess of the contract price may be obligated or expended by change order or contract adjustment unless the additional work to be performed or materials to be furnished are germane to the original contract.

b) A construction contract change order may cause the obligation or expenditure of funds in excess of the original contract amount provided the subject of the change order is germane to the original contract and the Department determines the additional expenditure is approved in accordance with Section 30-35 of the Code. The Department will approve construction contract change orders without supplemental procurement procedures in accordance with the following requirements and thresholds.

A construction contract change order that is germane and that causes the obligation or expenditure in excess of the amounts in Section 30-35(b) of the Code will not be authorized without supplemental procurement procedures unless the scope of the change order is approved as provided in Section 30-35 of the Code.
Determination of germaneness and the amount of additional expenditure or obligation thresholds will be determined in accordance with this Part and Section 30-35 of the Code.
Prior written approval or disapproval will be made by the Department in accordance with the threshold amounts established in Section 30-35 of the Code, and in all cases if the contemplated construction contract change order will cause an expenditure or obligation of funds of more than $100,000 in excess of the contract price even though the threshold levels provided in Section 30-35 of the Code do not require such action. The written approval will state the reasons for the additional obligation or expenditure and the basis for the germaneness determination.
For purposes of determining the scope of the change order and the value thereof that is subject to the requirements of this Section, the Department will consider the total net value of all added and deducted work functions related to the object of the change order and the work of the contract to be affected.
Notice of approved construction contract change orders in excess of $100,000 will be published in the Bulletin.

c) A construction contract adjustment is germane to the original contract. If a contract adjustment requires additional obligation or expenditure in excess of $100,000, the Department will record the provisions of the original contract in the contract payment file as authority for the addition.

d) Contract change orders and contract adjustments will be processed on a form prescribed by the Department.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.388 Continuing Disclosure

a) Every person that has entered into a contract for more than one year in duration for the initial term or for any renewal term shall certify, by January 1 of each fiscal year covered by the contract, after the initial fiscal year, to the Chief Procurement Officer any changes that affect its ability to satisfy the requirements of Article 50 of the Code. (Section 50-2 of the Code)

b) If a contractor or subcontractor continues to meet all requirements of Article 50 of the Code, or if the contract has been substantially completed before the contract expiration and the contract has not yet expired, the certification under subsection (a) is not required.

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.390 Application

The procedures of this Subpart G will govern the resolution of protests received by the CPO from an interested party concerning a contract solicitation.

44 Ill. Adm. Code 6.400 Interested Party

In order to be considered an interested party, the protester must be or have been an actual bidder or offeror who demonstrates compliance in all respects with this Part and the terms of the subject Invitation for Bids or Request for Proposals.

44 Ill. Adm. Code 6.410 Subject of the Protest

a) A protest may be filed regarding any phase of the solicitation process for a particular contract.

b) The subject of the protest shall concern fraud, corruption or illegal acts undermining the objectives and integrity of the procurement process.

c) Protest procedures of this Subpart G do not apply to issues of prequalification, lack of contractor responsibility, suspension or debarment.

History

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

44 Ill. Adm. Code 6.420 Filing of a Protest

a) All protests shall be in writing and filed with the CPO within 7 calendar days after the protester knows or should have known of the facts giving rise to the protest. Protests filed after the 7 calendar day period will not be considered. In addition, protests that raise issues of fraud, corruption or illegal acts affecting specifications, special provisions, supplemental specifications and plans must be received by the CPO no later than 14 calendar days before the date set for opening of bids.

b) The protest shall be contained in an envelope clearly labeled "Protest." The written protest shall include as a minimum the following requirements.

The name, address, telephone and facsimile numbers of the protester.
The identification of the procurement or solicitation that is the subject of the protest.
All information establishing that the protester is an interested party.
A detailed statement of the factual and legal grounds of the protest, including all relevant documents and exhibits that demonstrate fraud, corruption or illegal acts having the effect of undermining the integrity of the procurement process.
All information establishing the timeliness of the protest.
The signature of the protester.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.430 Stay of Action During Protest

When a protest has been timely filed and before an award has been made, the SPO will make no award of the contract until the protest has been resolved, unless the award of the contract without delay is necessary to protect the interests of the State. When a protest has been filed after an award has been made, the protest will be denied.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.440 Decision

a) A decision on a protest will be made as expeditiously as possible after receiving all relevant information.

b) The protest will be sustained only if it is determined by the CPO that the protest conclusively demonstrates by the preponderance of relevant information submitted that fraud, corruption or illegal acts have occurred that undermine the integrity of the procurement process.

c) If the protest is sustained, the remedies available are limited to cancellation or revision of the solicitation, or readvertisement of the solicitation. Relief available does not include award of the contract to the protester.

d) The decision of the CPO is final and conclusive unless clearly erroneous, arbitrary, capricious or contrary to law. (See Section 20-75 of the Code.) A copy of the decision of the CPO will be transmitted to the protester within 14 days after the decision is entered.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.450 Standard Specifications

All Department construction contracts will identify the version of the Standard Specifications, applicable to the type of work involved, used by the Department Division undertaking the project.

44 Ill. Adm. Code 6.460 Contract Documents

For construction contracts, the specifications, supplemental specifications, special provisions and plans will provide the requirements for the categories of work and materials needed for the contract. For all other contracts involving the procurement of supplies, the specifications will be incorporated in the appropriate contract documents.

44 Ill. Adm. Code 6.470 Specification Standards

a) Material and product specifications for construction contracts and construction-related service contracts that may require the delivery of material or products will be used that satisfy the needs of the Department and that are developed in accordance with the following standards.

Material and product specifications will reflect the needs of the Department and will describe the technical or performance requirements necessary to complete the contemplated work.
Brand-name only product specifications, including patented or proprietary products, will not be used, unless:

A) such products may be procured competitively with equally suitable nonbrand-name products; or

B) such products are necessary for compatibility with existing facilities; or

C) no equally suitable alternate exists; or

D) such products are to be used for research or for a distinctive type of application for experimental purposes.

When more than one product will fulfill the requirements for an item of work and the products are judged by the Department to be of satisfactory quality, and equally acceptable on the basis of engineering analysis and estimated price, the contract specifications may contain or include by reference a qualified products list.

b) For nonconstruction and nonconstruction-related services contracts, the CPO adopts the standards for specifications established by the CPO-GS.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.480 Purpose

The purpose of this Subpart I is to establish the standards and procedures governing the administrative action of suspension that may be taken by the CPO to safeguard the public interest in the solicitation, execution, administration and performance of public contracts or subcontracts. This Subpart applies to all suspension administrative actions taken by the CPO regarding any contractor or subcontractor that has participated, is currently participating or may be expected to participate in any Department contract or subcontracts.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.490 Definitions

As used in this Subpart:

a) "Affiliates" means firms where one controls or has the power to control another, or a third party or parties controls or has the power to control both.

b) "Hearing Officer" means the CPO or an attorney, licensed to practice law in this State, appointed by the CPO.

c) "Participation" means to enter into or attempt to enter into a contract awarded or approved by the Department, irrespective of the method of procurement, or any subcontract, material supply agreement or equipment lease transaction in connection with any such contract.

d) "Indictment" means the charge, information, or other filing by a competent authority charging a criminal offense.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.500 Policy

In order to protect the public interest in the solicitation, execution and performance of contracts or subcontracts administered by the Department, it is the policy of the Department to conduct business only with contractors or subcontractors of responsible business integrity and honesty. Suspension is a discretionary action imposed in accordance with this Part to serve the public interest and to implement this policy. It may be imposed only for the causes and in accordance with the procedures set forth in this Subpart.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.510 General

The CPO may suspend a contractor or subcontractor from participation on any contract or subcontract awarded by or requiring approval or concurrence of the Department upon a determination by the CPO based upon adequate evidence that the contractor or subcontractor has engaged in conduct proscribed by Section 6.520. This determination may be predicated on evidence developed by means of an investigation conducted by the CPO or the Department and procurement compliance monitors and the record of any hearing requested and conducted pursuant to this Subpart; by review of the public record containing a criminal conviction, a civil judgment, or an admission under oath of conduct evidencing proscribed conduct including a plea of nolo contendere; or the findings and decisions made in accordance with law by another public agency, or another appointed CPO, that the contractor or subcontractor has engaged in conduct proscribed by Section 6.520.

History

Source: Amended at 40 Ill. Reg. 6693, effective April 7, 2016

44 Ill. Adm. Code 6.520 Causes for Suspension or Debarment

A contractor or subcontractor may be suspended or debarred from participation due to acts or omissions that indicate that the contractor or subcontractor lacks integrity and honesty in the conduct of business or the performance of contracts. Acts or omissions that indicate the lack of business integrity and honesty include but are not limited to:

a) fraud, bribery, embezzlement, theft, collusion, conspiracy, anti-competitive activity or other misconduct and offenses prohibited by law whether or not any such misconduct or offense is in connection with a Department contract or subcontract or any contract or subcontract requiring Department approval;

b) making a material false statement in an application for prequalification or any forms or affidavits required as part of a prequalification process;

c) materially violating any rule or procurement procedure or making a material false statement in connection with any rules or procurement procedures of the Department;

d) making a material false statement, representation, claim or report respecting the character, quality, quantity, or cost of any work performed or materials furnished in connection with a contract or subcontract administered or supervised by the Department;

e) doing business with a suspended contractor or subcontractor in connection with a contract or subcontract of the Department or subject to approval of the Department during the period of suspension; or

f) being debarred or suspended by another agency of this State or the United States.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.530 Interim Suspension

The CPO may immediately suspend a contractor or subcontractor prior to and during the pendency of a hearing provided by this Subpart if the CPO finds that the facts and circumstances upon which the suspension cause is predicated are of such a nature as to require immediate action to safeguard the public interest in the solicitation, execution, administration or performance of contracts or subcontracts, whether awarded by the Department or subject to Department approval. An interim suspension may be imposed pending the completion of an investigation of the causes for suspension. Indictment upon charges evidencing a cause for suspension is a basis for an interim suspension. An interim suspension is effective immediately and will continue for a period of time established by the CPO of up to 120 days unless terminated sooner by the CPO. The CPO may extend the duration of an interim suspension beyond 120 days in order to allow for completion of a hearing that was scheduled for commencement during the original 120 day interim suspension period. In cases involving interim suspension based upon indictment, the interim suspension may be imposed for a period of up to one year or until conclusion of the legal proceeding.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.540 Voluntary Exclusion

A contractor or subcontractor may accept a status of nonparticipation or limited participation in Department contracts or subcontracts pursuant to the terms of an administrative settlement.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.550 Term of Suspension

Except as herein provided, the term of a suspension imposed by the CPO will be for a period, commensurate with the seriousness of the cause or causes, of up to 10 years. In cases involving the inadvertent or accidental failure to make the full disclosures required by Section 50-35 of the Code, the term of suspension will be for a period of no more than two years. (See Section 50-35(f) of the Code.) In cases involving the intentional, willful, or material failure to make the full disclosures required by Section 50-35 of the Code, the term of suspension will be for a period of not less than two years and not more than 10 years with eligibility for reinstatement after two years. (See Section 50-35(g) of the Code.)

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.560 Coverage

a) A suspension and interim suspension applies to the contractor or subcontractor set forth in the notice of suspension.

b) If the contractor or subcontractor named in the notice of suspension is a person, the suspension also applies to any other contractor or subcontractor:

in which the suspended person is an officer, director, manager or in any other substantial management or supervisory position, until such time as the person is severed from such contractor or subcontractor; or
in which the suspended person has controlling legal or beneficial financial interest, until such time as the suspended person's interests are divested.

c) In addition to all covered entities and affiliates, the suspension also applies to any entity or affiliate that is formed or organized subsequent to the date a suspension action was entered.

d) Any suspended contractor or subcontractor, for the term of such suspension, is ineligible to participate as a contractor, subcontractor, material supplier or lessor of equipment on or in connection with contracts or subcontracts awarded or approved by the Department.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.570 Other Agency Suspensions

Suspension under this Subpart I may be concurrent with or consecutive to any other suspension or debarment imposed by another public agency or CPO.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.580 Responsibility

Suspension under this Subpart I will also be deemed a finding of lack of responsibility.

44 Ill. Adm. Code 6.590 Continuation of Executory Contracts

Suspension or voluntary exclusion pursuant to this Subpart I shall not relieve a contractor or subcontractor or its surety of any obligation to be performed in accordance with the terms of any executory contract or bond that remains in full force and effect. Executory contracts are voidable by the Department without penalty or further payment, except payment for completed and accepted work, if the facts and circumstances giving rise to the suspension are of such a nature as to require action to safeguard the public interest.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.600 Exception Provision

A suspension action is final, except that the period of time during which a contractor or subcontractor is suspended may be decreased, delayed or rescinded at any time, if, in the judgment of the CPO, the public interest warrants such action. The CPO may grant an exception permitting a suspended or voluntarily excluded contractor or subcontractor to participate in a particular contract or subcontract or type of contracts or subcontracts if the public interest will be served by the participation. A contractor or subcontractor suspended for the intentional, willful, or material failure to make the disclosures required by Section 50-35 of the Code is not eligible for exception or reinstatement until two years of the suspension shall have passed. (See Section 50-35(g) of the Code.)

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.610 Notice of Suspension

a) Any contractor that the CPO proposes to suspend pursuant to this Part will be furnished written notice by personal service or by certified or registered mail.

b) The notice will include the following:

The cause for suspension on which the proposed suspension is based.
A clear and concise statement of the matters asserted and acts complained of, and the statutes, cause or rules upon which the allegations in the notice are based.
The legal authority and jurisdiction under which the action is taken, and the consequences of a failure to respond.

c) A notice may be amended at any time.

d) If the CPO has imposed an interim suspension, the notice will so indicate, will provide the reasons for the interim suspension, will state the interim period, and will state whether the interim suspension is pending completion of an investigation, an ensuing legal proceeding or a hearing provided according to this Subpart I.

e) Except in cases of interim suspensions imposed by reason of indictment, the notice will set forth the right to request a hearing.

f) For informational purposes, a copy of the written notice of suspension will be mailed to the Procurement Policy Board within 5 days after contractor notification.

History

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

44 Ill. Adm. Code 6.620 Response and Request for Hearing

a) Any contractor or subcontractor receiving a notice of suspension may, within 30 days after receipt of a notice, file an appearance and request for a hearing. A contractor or subcontractor that does not file an appearance and request a hearing within the 30 days after receipt shall be deemed to have waived any hearing and will be subject to immediate suspension.

b) Within 30 days after receipt of a notice that imposes an interim suspension, the contractor or subcontractor may submit, in person, in writing, or through a representative, information, documentation and argument in opposition to the interim suspension. The CPO will consider the contractor's or subcontractor's submission in light of the evidence developed in the pending investigation, and may modify or terminate the suspension or may leave it in force. The CPO's decision concerning imposition of an interim suspension is final without further hearing.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.630 Hearing Date and Hearing Officer

a) Upon receipt of an appearance and request for hearing, the CPO will set the matter for a hearing within 30 days, and notify the contractor or subcontractor of the place, time and date of the hearing and the designated Hearing Officer.

b) The contractor or subcontractor may file a written motion for disqualification of a Hearing Officer, setting forth reasons of personal bias or conflict of interest, within three days after appointment of the Hearing Officer.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.640 Answer

The contractor or subcontractor may file a written answer to a notice not later than twenty days prior to the hearing date, but shall not be required to file an answer. The answer may include affirmative defenses.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.650 Form of Documents

a) Documents shall clearly show the file hearing number and the title of the proceedings in connection with which they are filed.

b) Except as otherwise provided, two copies of all documents shall be filed.

c) Documents shall be typewritten or reproduced from typewritten copy on letter size white paper.

d) Each document filed shall be signed by the party or by his authorized representative or attorney.

44 Ill. Adm. Code 6.660 Computation of Time

a) Computation of any period of time prescribed by this Subpart I begins with the first business day following the day on which the act, event or development initiating such period of time occurs, and runs until the end of the last day, or the next following business day if the last day is a Saturday, Sunday, or legal holiday. When the period of time is five days or less, Saturdays, Sundays and legal holidays are excluded in the computation of time.

b) Notice requirements shall be construed to mean notice received, but proof that notice was dispatched by means reasonably calculated to be received by the prescribed date shall be prima facie proof that the notice was timely received.

44 Ill. Adm. Code 6.670 Appearances

a) Any person participating in proceedings may appear as follows:

A person may appear in his/her own behalf or by an attorney at law licensed to practice in the State of Illinois, or both.
A business, nonprofit, or government organization may appear by any bona fide officer, employee, or representative, or may be represented by an attorney licensed to practice in the State of Illinois, or both.

b) Attorneys not licensed to practice in the State of Illinois may appear on motion.

c) An attorney appearing in a representative capacity shall file a written notice of appearance.

44 Ill. Adm. Code 6.680 Hearing Procedures

a) The Hearing Officer has the authority to conduct and preside over the hearing, to take all necessary action to avoid delay, to maintain order, to ensure compliance with all notice requirements and to ensure the development of a clear and complete record. The Hearing Officer shall have all powers necessary to conduct a fair and impartial hearing including, but not limited to, the power to:

Administer oaths and affirmations;
Regulate the course of hearings, set the time and place for continued hearings, fix times for filing of documents, and in general conduct the proceedings, according to recognized principles of administrative law and the provisions of this Part;
Examine witnesses and direct witnesses to testify, limit the number of times any witness may testify, limit repetitious or cumulative testimony, and set reasonable limits on the amount of time each witness may testify;
Rule upon all motions and offers of proof and receive relevant, material evidence admissible under the rules of evidence applied in civil cases in the circuit courts of the State, including evidence not admissible under those rules, but that is of a type commonly relied upon by reasonably prudent people in the conduct of their affairs;
Direct parties to appear and confer for the simplification of issues, or presentation of evidence that may be received in written form without prejudice to the parties, and otherwise conduct pre-hearing conferences;
Dispose of procedural requests or similar matters;
Issue orders relating to pre-hearing discovery to the extent authorized by and permitted under this Part; and
Enter any order that further carries out the purpose of this Part.

b) The Hearing Officer has the authority to extend the date of any hearing, provided that the Hearing Officer may condition the granting of a contractor's request for an extension on the imposition or extension of an interim suspension should the circumstances warrant such action.

c) Any party to the hearing shall have the right to direct any other party to produce for inspection, copying, reproduction or photocopying written documents relevant to the subject matter of the hearing. Such request for documents shall be in writing and served on the party from whom production of documents is sought. A copy of the request shall be sent to the Hearing Officer and shall become part of the record of the case. The request shall specify a reasonable time, place and manner of making the inspection and copying.

d) The parties shall be afforded the opportunity to present, examine and cross-examine witnesses.

e) In cases where it has been established by admission or conviction or judgment of a court of competent jurisdiction that the contractor has engaged in conduct warranting a suspension or where it has been established by findings made in accordance with law by another public agency that the contractor has engaged in conduct warranting a suspension, the sole issue before the Hearing Officer shall be the receipt of evidence as to the appropriate length of a suspension. In such cases the Hearing Officer shall not receive evidence relating to the merits of the prior judicial or administrative decision or findings.

f) The Hearing Officer shall make a report containing findings of fact and conclusions of law and shall transmit the entire record, including such findings and conclusions, to the CPO for review and final decision. If the CPO will not review the record prior to rendering a decision, the Hearing Officer will serve upon the parties a proposed decision to which the parties may file a brief containing exceptions.

g) Testimony at the hearing shall be recorded either by a certified court reporter or a mechanical recording device, but need not be transcribed unless requested by a party who shall pay for the transcription of the portion requested. The transcript and the record offered in connection with the hearing shall constitute the official record.

h) The record shall include:

All pleadings, motions, and rulings;
Evidence received;
A statement of matters officially noticed;
Offers of proof, objections and rulings thereon;
Any proposed findings and exceptions to the report of the Hearing Officer, and the decision.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.690 Determination

a) Based on the record as a whole and an adequate evidence standard of proof, the CPO will determine the suspension action to be taken.

b) In assessing adequate evidence, consideration will be given to how much credible information is available, its reasonableness in view of surrounding circumstances, corroboration or lack thereof as to important allegations, and inferences that may be drawn from the existence or absence of affirmative facts. This assessment will include an examination of basic documents such as contracts, inspection reports, and correspondence.

c) Upon reaching a final decision, the CPO will notify the contractor or subcontractor of the determination and will set forth the period of time during which the contractor or subcontractor shall be suspended from bidding on Department contracts or contracts requiring Department approval or concurrence. Affected local government agencies will be notified of the final decision. Any interim suspension shall be deducted from the period of final suspension.

d) Parties will be served with a copy of the final decision by mail, postage prepaid, certified or registered, addressed to the last known address of the person, partnership, association, or company involved. A copy of the final decision will be mailed to each party and to all attorneys of record.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.700 Procurement File

a) The procurement file will contain all written documentation, forms, and any information generated by the Department or received from a proposer, bidder, or contractor for the procurement.

b) The Department's procurement file will not include trade secrets or other competitively sensitive, confidential, or proprietary information.

c) Multiple procurement file locations may exist, but must be readily available for review or disclosure under the Freedom of Information Act (FOIA).

History

Source: Amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.705 Property Rights

Receipt of an Invitation for Bids, Request for Proposals or other procurement document, or submission of any response thereto or other offer confers no right to receive an award or contract, nor does it obligate the State in any manner. All procurement documents submitted by a bidder or offeror become the property of the Department for disposition in accordance with the requirements of law. Trade secrets or other proprietary information submitted to the Department shall be expressly identified in writing; however, the Department reserves the right to determine the validity of any such claim, and may refuse to award a contract or may void any contract in circumstances where the party claiming the trade secret or proprietary data is unable to agree to disclosure for a public purpose. (See Section 1-25 of the Code.)

History

Source: Section 6.705 renumbered from Section 6.700 at 37 Ill. Reg. 19098, effective November 15, 2013

44 Ill. Adm. Code 6.710 Federal Requirements

Procedures applicable to procurements that contemplate the use of federal-aid funds, grants or loans shall be in accordance with requirements established by the federal administration having responsibility therefor, even if in addition to or in contravention of this Part. (See Section 20-85 of the Code.)

44 Ill. Adm. Code 6.720 Intergovernmental Agreements

Any procurement conducted by the Department on behalf of another government entity pursuant to an intergovernmental agreement shall be conducted using the procedures of this Part in accordance with the applicability provisions of the Code. (See Section 1-10(b) of the Code.)

44 Ill. Adm. Code 6.730 No Waiver of Sovereign Immunity

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.

44 Ill. Adm. Code 6.740 Written Determinations

The CPO will prescribe any administrative methods and operational procedures to be used in preparing written determinations required to be made by the Department by the Code or this Part, and will make such delegations to responsible officers for the implementation of the methods and procedures as will achieve the proper preparation, execution and retention of each written determination.

History

Source: Amended at 35 Ill. Reg. 16518, effective September 30, 2011

44 Ill. Adm. Code 6.750 Severability

If any provision or application of this Part is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without such invalid provision or application.

44 Ill. Adm. Code 6.801 Small Business Set-Asides

a) The CPO, in consultation with the Department, may determine categories of construction, supply, and service procurements that will be set aside for small businesses. The set-aside designation may be made for current and future procurements for a fair proportion of a specific construction, supply, or service, or for a class of like construction, supplies or services. A fair proportion of construction contracts means no less than 25% nor more than 40% of the annual total contracts for construction. A set-aside designation may last indefinitely or for a stated period of time, as determined by the Department. (See Section 45-45(a) and (c) of the Code.)

b) A business that meets the State (under Section 45-45(b) of the Code) or federal definition of a small business or small business concern on the day of bid or proposal opening will be considered a small business for the duration of the contract. The definition will be stated in the contract proposal.

c) If the Department wishes to make a procurement covered by a small business set-aside designation, the solicitation will note that responses are limited to those from responsible small businesses. Bids or proposals received from businesses other than small businesses will be rejected as nonresponsive. (See Section 45-45(a) of the Code.)

d) If the Department determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the Department will reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question. When a small business set-aside is withdrawn, notification will be published in the Bulletin with an explanation. After withdrawal of the small business set-aside, the procurement will be conducted in accordance with the limitations of the Code and this Part. (See Section 45-45(d) of the Code.)

e) Unless the Department provides a definition for a particular procurement that reflects industrial characteristics or uses a federal standard, a small business is one:

Independently owned and operated.
Not dominant in its field of operations, which means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration will be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
With annual sales for most recently ended fiscal year no greater than:

A) $13,000,000 for wholesale business;

B) $14,000,000 for construction business; or

C) $8,000,000 for retail business.

With no more than 250 employees if a manufacturing business.

A) A manufacturing business shall calculate how many people it employs by determining its average full-time equivalent employment, based on the number of persons employed on a full-time, part-time, temporary or other basis, for its most recently ended fiscal year.

B) If a manufacturing business has been in existence for less than a full fiscal year, its average employment should be calculated for the period through one month prior to the bid or proposal due date.

If the business is any combination of retailer, wholesaler or construction business, the annual sales for each component may not exceed the amounts shown in subsection (e)(3). For example, a business that is both a retailer and wholesaler may not have total sales exceeding $21,000,000; the retail component may not exceed $8,000,000; and the wholesale component may not exceed $13,000,000. If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed the number shown in subsection (e)(4).
When computing the size of a business, the number of employees and annual sales and receipts, as applicable, of the business and all affiliates will be considered. Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or, when a third party or parties controls or has the power to control both. In determining whether concerns are independently owned and operated and whether affiliation exists, consideration will be given to all appropriate factors, including the use of common facilities, common ownership and management and contractual arrangements. However, a franchise relationship will not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure. (See Section 45-45(b) of the Code.)

f) Small Business Specialist

The CPO shall designate one or more individuals to serve as its small business specialist, who shall have the duties set forth in Sections 45-45 and 45-90 of the Code, and who shall also act as coordinator of small business. The designated small business specialist shall compile statistics provided by the Department needed to make the small business annual report to the General Assembly required by Section 45-45(f) of the Code.
The small business specialist shall provide written instruction to any business registered as a small business pursuant to Section 45-45 of the Code on how to register for the Bulletin. Notice shall be provided within 30 days after the small business certification as required in Section 15-25 of the Code.

g) Small Business Contracts

Goal

A) It is the goal of the State of Illinois to award not less than 10% of the total dollar amount of State contracts to small businesses.

B) Small businesses are defined as those businesses meeting the criteria established in Section 45-45 of the Code and subsection (e) of this Section.

Goal Measurement

A) The goal shall be measured on a full fiscal year basis.

B) The Department's expenditures, whether against contracts established by the Department or against contracts established on behalf of the Department, shall be included in the Department's goal attainment statistics.

C) The Department may satisfy its goal, in whole or in part, by counting expenditures made by State vendors to subcontractors that are small businesses.

Department Compliance Plan

A) The Department shall submit an annual compliance plan of how it intends to reach its goal, and a timetable for reaching its goal, as required by Section 45-90(c) of the Code. The CPO will establish the format and timetable for submission of the compliance plan. The CPO will approve the plan if it meets the requirements of the Act and this Part.

B) The Department shall submit an annual utilization report of small business contracts during the preceding fiscal year, including lapse period spending and a mid-fiscal year utilization report. The CPO will establish the format and timetable for submission of the utilization plan and will provide a copy of the utilization report to the PPB.

C) The CPO or small business specialist appointed under Section 45-45 of the Code may recommend ways in which the Department may reach its goal. Upon a finding by the CPO that the Department's compliance plan is insufficient to reach the Department's goal, the CPO will recommend ways in which the Department can reach its goal.

D) If the compliance plans or utilization reports indicate the Department goal will not be reached, the CPO may request the Department to explain the Department's noncompliance. If the CPO determines the Department is not making a serious effort to reach the goal, the CPO will prepare a report for submission to the Governor and General Assembly with recommendations for remedial action.

h) Contractors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses or small business concerns shall submit information verifying that the contractor qualifies as a small business. The Department may establish procedures for verifying such information.

History

Source: Section 6.801 renumbered from Section 6.125 and amended at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.803 Disadvantaged Business Enterprise Program

a) In accordance with 49 CFR 26, the Department must implement a DBE program, approved by the U.S. Department of Transportation, to remove barriers to the participation of DBEs in DOT-assisted contracts, as well as other similar objectives.

b) The Department shall review contracts to ensure compliance with its DBE program as required by 49 CFR 26.

History

Source: Added at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.805 Veterans

a) It is the goal of the State to promote and encourage the continued economic development of small businesses owned and controlled by qualified veterans and that qualified service-disabled veteran-owned small businesses and veteran-owned small businesses participate in the State's procurement process as both prime contractors and subcontractors. [30 ILCS 500/45-57]

b) The Department of Central Management Services has delegated to the Department the authority to determine the goal for each individual construction and construction-related services contract. (See 44 Ill. Adm. Code 20.100.)

c) Contracts that are subject to federal reimbursement are exempt from veteran-owned small business goals. (See 44 Ill. Adm. Code 20.120.)

History

Source: Added at 44 Ill. Reg. 6222, effective April 8, 2020

44 Ill. Adm. Code 6.900 Purpose and Objective

a) Purpose

The purpose of this Part is to establish policies and procedures to allow the Department to fulfill its obligations to enter into public private agreements between the State of Illinois and one or more private entities for any or all of the work to develop, finance, construct, manage, and operate the Illiana Expressway. (Section 5(c) of the Act)

b) Objective

Coordination is required among the CPO, the Department and the State of Indiana in efforts to build a new interstate highway connecting Interstate Highway 55 in northeastern Illinois to Interstate Highway 65 in northwestern Indiana.

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.905 Definitions

As used throughout this Subpart, terms defined in the Illinois Procurement Code and the Act have the same meaning as in the Code or the Act and as further defined in this Subpart. Each term in this Subpart has the meaning set forth as follows unless its use clearly requires a different meaning.

"Act" means the Public Private Agreements for the Illiana Expressway Act [605 ILCS 130].

"Agreement" means a public private agreement. (Section 10 of the Act)

"Best Value Selection" means any selection process in which proposals contain both price and qualitative components and award is based upon a combination of price and qualitative considerations. (See 23 CFR 636.103.)

"COGFA" means the Commission on Government Forecasting and Accountability.

"Chief Procurement Officer" or "CPO" means the person appointed under Section 1-15.15(2) of the Code.

"Clarifications" means a written or oral exchange of information that takes place after the receipt of proposals. The purpose of a clarification is to address minor, non-material or clerical revisions in a proposal. (See 23 CFR 636.103.)

"Code" means the Illinois Procurement Code [30 ILCS 500].

"Contractor" means a person that has been selected to enter or has entered into a public private agreement with the Department on behalf of the State for the development, financing, construction, management, and any or all of the operation of the Illiana Expressway pursuant to the Act. (Section 10 of the Act)

"Department" means the Illinois Department of Transportation. (Section 10 of the Act)

"Discussions" means written or oral exchanges that take place with the short listed offerors. (See 23 CFR 636.103.)

"Final Proposal" means the technical proposal and cost proposal that will be the basis for award.

"Illiana Expressway" means the fully access-controlled interstate highway connecting Interstate Highway 55 in northeastern Illinois to Interstate Highway 65 in northwestern Indiana, which may be operated as a toll or non-toll facility. (Section 10 of the Act)

"Interim Agreements" means an agreement entered into with the contractor prior to or in connection with the negotiation of the public private agreement. (Section 30 of the Act)

"Manage" means conducting, supervising or maintaining services under the public private agreement.

"Offeror" means a person that responds to a request for proposals under this Subpart and as part of a competitive request for proposals process. The term offeror may include potential offerors identified as short listed persons from the qualifications process. (Section 10 of the Act)

"Operation" means performance of management activities for the Illiana Expressway, including, but not limited to, user fees, maintenance and traffic control.

"Person" means any individual, firm, association, joint venture, partnership, estate, trust, syndicate, fiduciary, corporation, or any other legal entity, group, or combination thereof. (Section 10 of the Act)

"PPB" means the Procurement Policy Board created by Section 5-5 of the Code.

"Prequalification" means the rating process established by the Department that requires all prospective bidders or offerors to be permitted to submit bids or offers in accordance with 44 Ill. Adm. Code 650 or Chapter 8 of the Department's Bureau of Design and Environment Manual (manual). The manual is available on the Department's website at http://www.dot.il.gov/desenv/bdemanual.html.

"Proposal" means a response to a Request for Proposals and includes draft and final proposals if provided for in the RFP.

"Public Private Agreement" means an agreement or contract by the Department on behalf of the State and all schedules, exhibits, and attachments thereto, entered into pursuant to a competitive Request for Proposals process governed by this Subpart for any or all of the development, financing, construction, management, and operation of the Illiana Expressway. (Section 10 of the Act)

"Qualifications" means whether a person has the necessary prerequisites to compete for work contemplated for the Illiana Expressway, including, but not limited to, qualifications related to experience and knowledge of public private partnerships.

"Request for Proposals" or "RFP" means the process by which the Department requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals. (See 30 ILCS 500/1-15.75.)

"Request for Qualifications" or "RFQ" means the document issued by the Department in Phase I of a two-phased selection process. An RFQ typically describes the project in enough detail to allow potential offerors to determine if they wish to compete and, also, forms the basis for requesting qualifications submissions from which the most highly qualified offerors can be identified. (See 23 CFR 636.103.)

"Responsible" means the capability, integrity and reliability of an offeror or contractor that, in all respects, will assure good faith performance to undertake and complete fully the requirements of a contract.

"Responsive" means, in the context of procurement procedures, compliance in all meaningful, material respects with the RFP.

"Revenue Sharing" means all revenues divided between the Department and the contractor, including, but not limited to, income; user fees; earnings; interest; lease payments; allocations; moneys from the federal government, the State, and units of local government, including but not limited to federal, State, and local appropriations, grants, loans, lines of credit, and credit guarantees; bond proceeds; equity of credit and credit guarantees; equity investments; service payments; or other receipts arising out of or in connection with the financing, development, construction, management, or operation of the Illiana Expressway. (Section 10 of the Act)

"Short Listing" means the narrowing of the field of offerors through the selection of the most highly qualified offerors who have responded to an RFQ. (See 23 CFR 636.103.)

"Solicitation" means a public notification of the Department's need for information, qualifications or proposals related to identified services. (See 23 CFR 636.103.)

"State" means the State of Illinois. (Section 10 of the Act)

"Statement of Qualifications" means a document submitted in response to an RFQ.

"Stipend" means a monetary amount that can be paid to unsuccessful offerors. (See 23 CFR 636.103.)

"Secretary" means the Secretary of the Illinois Department of Transportation. (Section 10 of the Act)

"Technical Proposal" means that portion of the proposal that contains design solutions and other qualitative factors that are provided in response to the RFP.

"Two-Phase Selection Process" means a procurement process in which Phase I consists of short listing (based on qualifications submitted in response to an RFQ) and Phase II consists of the submission of price and technical proposals in response to an RFP. (See 23 CFR 636.103.)

"User Fees" means the tolls, rates, fees, or other charges imposed by the State or the contractor for use of all or part of the Illiana Expressway. (Section 10 of the Act)

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.910 General Conditions for Use

The procedures set forth in this Subpart L will be used for Illiana Expressway public private agreements procured by the Department through a competitive request for proposals process. (See Section 20(a) of the Act.)

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

Chapter III Chief Procurement Officer for the Department of Transportation

Part 6 Chief Procurement Officer for the Department of Transportation - Contract Procurement

44 Ill. Adm. Code 6.915 Prequalification and Qualifications

Due to the unique nature of this two-step procurement process, the Department may use its existing prequalification procedures as a supplement to the qualifications procedures in the Act (see Sections 17 and 20 of the Act), including the issuance of an RFQ. Prequalification requirements will be set forth in the RFQ.

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.920 Information Exchanges

When initiated by the Department, the Department, with the approval of the CPO and in accordance with the Code, may have exchanges with industry prior to the receipt of proposals in order to obtain information.

a) Exchanges include, but are not limited to, the following:

Industry or small business conferences;
Public hearings;
Market research;
One-on-one meetings with potential offerors that will include the CPO or the CPO's designee;
RFPs;
Presolicitation or proposal conferences; and
Site visits. (See 23 CFR 636.115(c).)

b) When specific information is necessary for the preparation of a proposal and that specific information is disclosed to one or more potential offerors, that specific information will be made available to all potential offerors as soon as practicable, but no later than the next general release of information, in order to avoid creating an unfair competitive advantage. (See 23 CFR 636.115(e).)

c) Upon request by a potential offeror, and as approved by the CPO, information provided to a potential offeror in response to that potential offeror's request will not be disclosed if doing so would reasonably reveal the potential offeror's confidential business strategy because it involves a trade secret or concerns commercial or financial information that is proprietary, privileged or confidential and would cause competitive harm to the offeror. This information may be subject to disclosure under federal or State freedom of information laws. (See 23 CFR 636.115(e) and 636.subpart D (information exchanges); see also 5 ILCS 140.)

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.925 Competitive Request for Proposals Process

a) The competitive request for proposals process will, at a minimum, solicit statements of qualifications and proposals from offerors (Section 20(b) of the Act) as part of a two-phase selection process and solicited through an RFQ and RFP.

The first phase consists of the receipt and evaluation of qualifications in response to an RFQ, resulting in a short list of the most highly qualified persons.
The second phase consists of the receipt and evaluation of technical proposals and financial proposals in response to an RFP. Innovative financing concepts will be encouraged.
Offerors may be permitted to submit alternate technical concepts in their pre-proposals as long as these alternate technical concepts do not conflict with criteria agreed upon in the environmental decision making process and the alternate technical concept is in the State's best interest. Alternate technical concept proposals may supplement, but not substitute for, base proposals that respond to the RFP requirements. (See 23 CFR 636.209.)

b) Public notice of an RFQ will be published in the Transportation Procurement Bulletin for at least 30 days before the date set in the invitation for the submittal of statements of qualifications. (See Section 17 of the Act.)

c) Public notice of an RFP will be published in the Transportation Procurement Bulletin for at least 21 days before the date set in the invitation for the opening of proposals. (See 23 CFR 635.112.)

d) The competitive request for proposals will take into account, but not be limited to, the following criteria:

The offeror's plans for the Illiana Expressway project;
The offeror's current and past business practices;
The offeror's poor or inadequate past performance in developing, financing, constructing, managing, or operating highways or other public assets;
The offeror's plans to utilize small businesses, including the offeror's ability to meet, and past performance in meeting, or exhausting good faith efforts to meet the utilization goals, or plans to comply with utilization goals, for business enterprises established in Section 6(d) of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act [30 ILCS 575/6(d)] or federal law or regulations that establish standards and procedures for the utilization of minority, disadvantaged, and female-owned businesses;
The offeror's ability to comply with, and past performance in complying with, Section 2-105 of the Illinois Human Rights Act [775 ILCS 5]. (Section 20 of the Act)

e) The Department will not include terms in the RFQ or RFP that provide an advantage, whether directly or indirectly, to any contractor presently providing goods, services, or equipment to the Department. (Section 20(e) of the Act)

f) The RFP may be revised prior to the receipt of proposals.

g) Oral presentations may supplement written information at the invitation of the Department at any time during the procurement process, including, but not limited to, one-on-one meetings with the Department and oral presentations of proposals. If oral presentations will be used, the time and date, format, and other details will be included in the solicitation.

h) The Department may elect to pay a stipend to unsuccessful offerors who have submitted responsive proposals.

This decision will be made in accordance with 23 CFR 636.112 and 636.113 and may depend on eligibility for federal aid participation.
If stipends are used, the RFP will describe the process for distributing the stipend to qualifying offerors. Acceptance of the stipend is not mandatory.

i) A procurement protest process will be specified in the RFQ and the RFP.

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.930 Organizational Conflict of Interest Requirements

a) All conflict provisions contained in the Code will be included in the RFQ or RFP documents, including, but not limited to, Section 50-35 of the Code addressing financial disclosures and potential conflicts of interest.

b) The Department will take into consideration the mulit-faceted nature of this procurement and related procurements when forming proposal and selection team members. An understanding of public private partnerships will be required with some members having, at a minimum, expertise in private and public financing, construction and engineering.

c) The Department will make available specific instructions applicable to proposal and selection team members. These instructions will include all applicable provisions of the State Officials and Employees Ethics Act, including, but not limited to, ethical conduct and gift bans. [5 ILCS 430]

d) Notwithstanding disclosure requirements under the Code, the Department will address the following situation, as appropriate:

Consultants or subconsultants who assist the Department in the preparation of the RFP document under contract will be prohibited from submitting a proposal and from participating on a team submitting a proposal in response to the RFP. However, the Department, with the CPO's concurrence, may determine there is not an organizational conflict of interest for a consultant or subconsultant when:

A) The role of the consultant or subconsultant (subcontractor) was limited to the provision of preliminary design, reports or similar "low-level" documents that will be incorporated into the RFP and did not include assistance in the development of instructions to offerors or evaluation criteria; or

B) All documents and reports delivered to the agency by the consultant or subconsultant are made available to all offerors.

This practice may be reviewed pursuant to the provisions of the Code. (See 23 CFR 636.116.)

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.935 Proposal Evaluation

a) Proposals will be evaluated and any award will be made in accordance with applicable federal requirements for the competitive RFP process described in this Subpart L. (See 23 CFR 636.)

b) Proposals will be evaluated solely on the factors and criteria specified in the RFP.

c) Proposals will be reviewed by the Department and may lead to discussions with offerors pursuant to Section 6.940.

d) Each proposal will be reviewed by the Department to determine if the proposal is responsive to the submission requirements outlined in the RFP and to determine if the offeror is responsible.

A responsive proposal is one that follows the requirements of the RFP, includes all documentation, is submitted in the format outlined in the RFP, is timely submitted, and has been signed by representatives of the offeror authorized to bind the offeror. Failure to comply with these requirements may result in the proposal being deemed nonresponsive.
A responsible offeror is one that demonstrates the capability to satisfy the commercial, ethical and technical requirements set forth in the RFP. An offeror's failure to demonstrate that it is responsible may result in the proposal being rejected.

e) The Department reserves the right to request that an offeror provide additional information or clarify information (see Section 6.945). The Department's determination regarding the responsiveness of a proposal and the responsibility of an offeror will be final.

f) In addition to any other rights under this Subpart L, the Department may:

Withdraw an RFQ or RFP at any time and publish a new RFQ or RFP;
Decline to award a public private agreement for any reason;
Request clarifications to any qualifications or RFPs or seek one or more revised proposals or one or more best and final offers;
Modify the terms, provisions and conditions of an RFQ, RFP, technical specifications, or form of a public private agreement during the procurement process; and
Interview offerors in accordance with this Subpart.

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.940 Discussions with Offerors

In accordance with provisions of the RFP, the Department may meet with each offeror for the purpose of discussing the RFP or proposal in detail. The offerors will be notified of any questions or requests for additional information. The offeror may be invited for confidential discussions with the Department to discuss answers to written or oral questions and any facet of the draft RFP or proposal.

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

Chapter III Chief Procurement Officer for the Department of Transportation

Part 6 Chief Procurement Officer for the Department of Transportation - Contract Procurement

44 Ill. Adm. Code 6.945 Clarifications

After the initial evaluation, the results for all proposals will be gathered, evaluated and ranked for each of the evaluation criteria. If information is not complete, the Department will either seek clarifications or declare the proposal nonresponsive.

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.950 Selection and Negotiations

a) The Department may use a selection process that results in the selection of one or more proposals including, but not limited to, best value to the public (see Section 6.905, "Best Value Selection") or revenue sharing, or any other selection process that the Department determines is in the best interest of the State.

b) The Department will select at least 2 offerors as finalists. One offeror will be named a finalist and at least one named an alternate finalist. The Department will submit the offerors' statements of qualification and proposals to the COGFA and the PPB. (Section 20(f) of the Act)

c) The Department may select one offeror for negotiations based on the evaluation criteria set forth in the RFP. In the event that the Department determines that negotiations with the selected offeror are not likely to result in a public private agreement or no longer reflect the best offer to the State and the public, the Department may commence negotiations with another responsive offeror and may suspend, terminate or continue negotiations with the other offeror or offerors. If negotiations with the next offeror are unsuccessful, the Department may terminate the procurement without award and may begin a new procurement under this Subpart L.

d) The Department will not select an offeror as the contractor for the Illiana Expressway project until it has received and considered the findings of the COGFA and the PPB, as set forth in their respective reports. (Section 20(f) of the Act)

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.955 Interim Agreements

Prior to or in connection with the negotiation of the public private agreement, the Department may enter into one or more interim agreements with the selected offeror or other vendors if the Department determines in writing that it is in the public interest to do so. (Section 30 of the Act)

a) The interim agreement may not authorize the contractor to perform construction work prior to the execution of the public private agreement. (Section 30(b) of the Act)

b) The interim agreement may include any or all of the provisions set forth in Section 30(c) of the Act. (Section 30(c) of the Act)

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.960 Award

a) Before awarding a public private agreement to an offeror, the Department will schedule and hold a public hearing or hearings on the proposed public private agreement and publish notice of the hearing or hearings at least 7 days before the hearing and in accordance with Section 4-219 of the Illinois Highway Code [605 ILCS 5/4-219].

The notice must include the following:

A) The date, time, and place of the hearing and the address of the Department;

B) The subject matter of the hearing;

C) A description of the agreement that may be awarded; and

D) The recommendation that has been made to select an offeror as the contractor for the Illiana Expressway project.

At the hearing, the Department will allow the public to be heard on the subject of the hearing. (Section 20(g) of the Act)

b) After the procedures required in this Section have been completed, the Department will make a determination as to whether the offeror should be designated as the contractor for the Illiana Expressway project and will submit the decision to the Governor and to the Governor's Office of Management and Budget. After review of the Department's determination, the Governor may accept or reject the determination. If the Governor accepts the determination of the Department, the Governor shall designate the offeror for the Illiana Expressway project. (Section 20(h) of the Act)

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

Chapter III Chief Procurement Officer for the Department of Transportation

Part 6 Chief Procurement Officer for the Department of Transportation - Contract Procurement

44 Ill. Adm. Code 6.965 Execution of Contract and Notice to Proceed

The Department will publish a notice of the execution of the public private agreement and the Notice to Proceed on its website at http://www.dot.il.gov and in the newspaper of general circulation within the county or counties whose territory includes or lies within 5 miles from a proposed or existing Illiana Expressway project site. Additionally, the Department will publish the full text of the public private agreement on its website. (Section 65 of the Act)

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.970 Subsequent Contracts

a) The Department may, pursuant to the Code and this Part, award contracts for goods, services, or equipment to persons other than the contractor for goods, services, or equipment not provided for in the public private agreement. (Section 50 of the Act) Notwithstanding any provision of law to the contrary, the selection of professional design firms by the Department will comply with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535]. (Section 47 of the Act)

b) After execution of the public private agreement, subsequent contracts by the contractor must be in compliance with the Code, the Act and Department policies.

c) The contractor's authority to negotiate and execute subsequent subcontracts with third parties will be included in the public private agreement.

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.975 Disclosure of Proposal Contents

In accordance with the Code and the Freedom of Information Act [5 ILCS 140] and prior to execution of the public private agreement, all records relating to discussions or negotiations between the Department and short listed offerors will be treated as confidential. Upon final execution of the public private agreement and each financing transaction required to provide funding, all proposals will be subject to possible disclosure under the Freedom of Information Act or federal disclosure laws, except to the extent that the information may be treated as confidential under those laws.

History

Source: Added at 37 Ill. Reg. 15878, effective September 27, 2013

44 Ill. Adm. Code 6.1000 Purpose

For DBB projects, the architectural, engineering and land surveying services shall be procured in compliance with the QBS Act. Construction management services shall be procured in compliance with Article 33 of the Code (Construction Management Services). CMGC, DB, and PDB services shall be procured in compliance with the ITI Act.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1010 Other Acts

The CPO shall review procurements for compliance with applicable Acts listed in Section 30-45 of the Code. This review is governed by other agencies' responsibility for administration of those other Acts (e.g., for the Prevailing Wage Act [820 ILCS 130], the Department of Labor), and can include, but is not limited to, debarment, ineligibility status, or other sanctions as determined by a State agency under those Acts.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1020 Department Representatives

a) For projects with an estimated cost over $30,000,000 at the time the Department makes a written determination that it is in the best interests of the State to use the selected delivery method for that transportation facility, the Department shall independently procure an owner's representative to supplement staff directly employed by the Department to provide oversight, contract compliance services, and other services related to the project. The Department may secure an owner's representative through an on-call services contract for a particular project (on a project-by-project basis) or for multiple projects. Owner's representative may be one or more of the following:

b) Procurement Engineer (PCE)

The Department may appoint from internal transportation staff or procure an owner's representative to serve as the PCE.
The PCE will provide services throughout the pre-procurement and procurement phases including items such as Phase I design, procurement document development and general engineering services in support of a CMGC, PDB, or DB project.

c) Engineer of Record (EOR)

The Department may appoint from internal transportation staff or procure an owner's representative to serve as the EOR.
The EOR will provide design services throughout the project including Phase I design, Phase II design, and design support during construction.
The EOR will be responsible for collaborating with the CMGC contractor during the preconstruction phase of a CMGC project.
The EOR is responsible for signing and sealing the plans and specifications.

d) Independent Cost Estimator (ICE)

The Department may appoint from internal transportation staff or procure an independent cost estimator to serve as the ICE.
The ICE may be furnished by the owner's representative provided the ICE services are provided by staff who are independent from all other services provided by the owner's representative.
Participation on any project shall disqualify the ICE and their subcontractors from bidding on the same project should the selected CMGC, PDB, or DB proposer be unsuccessful in negotiating a CMGC, DB, or PDB contract with the Department or the Department cancels the procurement after selection of a proposer, and the project is then re-procured using the same or different contracting methodology.

e) Construction Oversight Team (COT)

The Department may appoint from internal transportation staff or procure a construction oversight team to serve as the COT.
The COT will provide services throughout the final design and construction phases of a CMGC, PDB, or DB project for which it has been appointed.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1030 Cmgc Procurement Process

a) The construction manager/general contractor project delivery method utilizes a CMGC contractor under a CMGC contract to provide pricing, constructability reviews, and risk analysis during design development. The CMGC contractor negotiates a guaranteed maximum price for the construction, and upon the Department's acceptance of the GMP and agreement on contract terms for construction, the CMGC contractor is given notice to proceed with construction. During the implementation phase, the CMGC contractor manages the construction and hiring of subcontractors to perform the construction work.

b) CMGC projects are implemented in four phases:

Pre-procurement Phase (Preliminary Design/Project Readiness)
Procurement Phase (Advertisement/Evaluation/Selection)
Preconstruction Phase (Design Advancement/Contract Price)
Implementation Phase (Construction)

c) Pre-procurement Phase

During the pre-procurement phase for a CMGC project, the Department will perform the typical project development activities associated with Phase I of the Department's project development process before procuring a CMGC contractor. These activities include preliminary engineering, engineering studies, environmental and permitting activities, to prepare for beginning the CMGC procurement.

d) CMGC Procurement Phase

Overview

A) The CMGC contractor is procured utilizing a single-phase or two-phase procurement process to inform a best value selection of the successful CMGC contractor pursuant to a request for proposals. The decision to utilize a single phase or two-phase procurement will be done in consultation with the Chief Procurement Office.

B) Under a two-phase procurement, the Department will first issue a request for qualifications and then an RFP.

Selection and Award

A) Each proposer submission, such as an SOQ and proposal, will be evaluated by the IPD evaluation committee. Each individual IPD evaluation committee member will review each submission independently, observing its strengths and weaknesses, based on project specific evaluation criteria provided in the procurement documents. After all IPD evaluation committee members conduct an independent review, the IPD evaluation committee will meet to review each submission collectively and generate a consensus score for such submission. The consensus scores will be used to rank the proposers unless otherwise directed by the IPD bureau chief after consultation with the SPO/CPO.

B) All IPD evaluation committee members will participate in interviews, if anticipated in the RFP and conducted. Each individual IPD evaluation committee member will review each interview independently, observing its strengths and weaknesses based on project specific evaluation criteria provided in the procurement documents. Once all interviews are evaluated individually, the IPD evaluation committee will meet to confirm or update the consensus score for each proposer.

C) The highest ranked proposer (inclusive of the interview score, if interviews were conducted) will be selected to serve as the CMGC contractor.

D) The award will occur upon notification to the selected proposer and completion of any conditions to award specified in the RFP.

E) Once the Department approves the selection, and after consultation with the SPO/CPO, the proposers will be notified of the selection results.

F) Once a CMGC contract is executed with the successful proposer, the Department may offer a debrief meeting with unsuccessful proposers.

Final Preconstruction Phase Services Cost Proposal

A) The selected CMGC contractor will prepare a preconstruction phase services cost proposal inclusive of a detailed project scope and price for providing the necessary preconstruction services to reach an agreed price which is in line with any cost information included in the selected proposal. The price will then be reviewed and negotiated, to the extent necessary, with the Department.

B) The CMGC contract, inclusive of agreed preconstruction phase services costs, will be executed and the Department will issue notice to proceed with the preconstruction phase services.

C) If the CMGC is unable or unwilling to execute the CMGC contract, the Department may award the project to the proposer with the next best score or reprocure the project under any other delivery method.

CMGC Preconstruction Phase

A) The Department and the CMGC contractor will work collaboratively to advance the project design to a level of completion necessary for the Department and the CMGC contractor to reach a mutually agreed GMP for the construction of the project.

B) The CMGC contractor shall submit a GMP for the construction of the project unless otherwise directed by the IPD bureau chief to submit a lump sum price.

C) If the Department and the CMGC contractor mutually agree on the project scope, risk allocations, cost assumptions and the commercial terms of the CMGC contract, the CMGC contractor submits a GMP proposal for the construction work.

D) Upon agreement, the CMGC contract will be amended to reflect the negotiated construction terms. If the Department and the CMGC contractor are unable reach an agreed GMP, after consultation with the SPO/CPO, the CMGC contract will be terminated and the Department may award to the next highest ranked proposer, if such proposer's proposal remains valid, or reprocure the project under any other delivery method.

E) All work product produced by the CMCG contractor becomes the property of the Department pursuant to the terms of an executed CMGC contract.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1040 Pdb Procurement Process

a) The progressive design-build project delivery method is a form of the design-build project delivery method that employs a progressive approach in which the Department and the selected progressive design-build contractor collaborate to progress the design and refine the project scope to meet project objectives with the goal of negotiating a mutually agreeable lump sum or guaranteed maximum price for the design and construction work.

b) PDB Projects are implemented in four phases:

Pre-Procurement Phase (Preliminary Design/Project Readiness)
Procurement Phase (Advertisement/Evaluation/Selection)
Preconstruction Phase (Design Advancement/GMP)
Implementation Phase (Final Design/Construction)

c) PDB Pre-Procurement Phase

During the pre-procurement phase for a PDB project, the Department will perform the typical project development activities associated with Phase I of the Department's project development process before procuring a PDB contractor. These activities include preliminary engineering, engineering studies, environmental and permitting activities, to prepare for beginning the PDB procurement.

d) PDB Procurement Phase

Overview

A) The PDB contractor is procured utilizing a single-phase or two-phase procurement process to inform a best value selection of the successful PDB contractor pursuant to a request for proposals. A two-phase procurement shall be utilized unless the project is estimated to cost $5,000,000 or less at the time the Department makes a written determination that it is in the best interests of the State to use the PDB delivery method for the project (in which case the Department may use either a single-phase or two-phase procurement), or the Secretary, with consultation with the SPO/CPO, provides written approval that the Department may use a single-phase procurement for the specific project being procured.

B) Under a single-phase procurement, the Department will issue only a request for proposals to procure the PDB contractor.

C) Under a two-phase procurement, the Department will first issue a request for qualifications and then an RFP

Selection and Award

A) Each proposer submission, such as an SOQ and proposal, will be evaluated by the IPD evaluation committee. Each individual IPD evaluation committee member will review each submission independently, observing its strengths and weaknesses based on project specific evaluation criteria provided in the procurement documents. After all IPD evaluation committee members conduct an independent review, the IPD evaluation committee will meet to review each submission collectively and generate a consensus score for such submission. The consensus scores will be used to rank the proposers unless otherwise directed by the IPD bureau chief, after consultation with the SPO/CPO.

C) The highest ranked proposer (inclusive of the interview score, if interviews were conducted) will be selected to serve as the PDB contractor.

D) The award will occur upon notification to the selected proposer and completion of any conditions to award specified in the RFP.

E) Once the Department has approved the selection, and after consultation with the SPO/CPO, the proposers will be notified of the selection results.

F) Once a PDB contract is executed with the successful proposer, the Department may offer a debrief meeting with unsuccessful proposers.

Preconstruction Phase Services Cost Proposal

A) The selected PDB contractor will prepare preconstruction phase services cost proposal inclusive of a detailed project scope and price for providing the necessary preconstruction services to reach an agreed lump sum or GMP which is in line with any cost information provided in the selected proposal, which will then be reviewed and negotiated, to the extent necessary, with the Department.

B) The Department will execute the PDB contract, inclusive of the agreed preconstruction phase services costs, and will issue a notice to proceed with the preconstruction phase services.

C) If the PDB is unable or unwilling to execute the PDB contract, the Department may award the project to the proposer with the next best score or reprocure the project under any other delivery method.

e) PDB Preconstruction Phase

The Department and the PDB contractor will work collaboratively to advance the project design to a level of completion necessary for the Department and the PDB contractor to reach a mutually agreed lump sum or GMP.
Once the Department and the PDB contractor mutually agree on the project scope, risk allocations, cost assumptions and the commercial terms of the PDB contract, the PDB contractor submits a lump sum or GMP proposal for the construction work.
Upon agreement, the PDB contract will be amended to reflect the negotiated construction terms. If the Department and the PDB contractor are unable to reach an agreed lump sum or GMP, after consultation with the SPO/CPO, the PDB contract will be terminated and the Department may either award to the next highest ranked proposer, if such proposer's proposal remains valid, or reprocure the project under any other delivery method.
All work product produced by the PDB contractor becomes the property of the Department pursuant to the terms of an executed PDB contract.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1050 Db Procurement Process

a) Design-build is an alternative project delivery method that allows a design-build contractor to perform design and construction concurrently, rather than sequentially as on DBB projects

b) DB projects are developed in the following three phases:

Pre-Procurement Phase (Preliminary Design/Project Readiness)
Procurement Phase (Advertisement/Evaluation/Selection)
Implementation Phase (Design/Construction)

c) DB Pre-Procurement Phase

During the pre-procurement phase for a DB project, the Department will perform the typical project development activities associated with Phase I of the Department's project development process before procuring a DB contractor. These activities include preliminary engineering, engineering studies, environmental and permitting activities, to prepare for beginning the DB procurement.

d) DB Procurement Phase

Overview

A) The DB contractor is procured utilizing a single-phase or two-phase procurement process to inform a best value selection of the successful DB contractor pursuant to a request for proposals. A two-phase procurement shall be utilized unless the project is estimated to cost $5,000,000 or less at the time the Department makes a written determination that it is in the best interests of the State to use the DB delivery method for the project (in which case the Department may use either a single-phase or two-phase procurement), or the Secretary, after consultation with the SPO/CPO, provides written approval that the Department may use a single-phase procurement for the specific project being procured.

B) Under a single-phase procurement, the Department will issue only a RFP to procure the DB contractor.

C) Under a two-phase procurement, the Department first issue a request for qualifications and then an RFP.

Alternative Technical Concepts

A) A proposer may submit one or more ATCs for the Department's review and approval to allow inclusion of the ATC in its proposal.

B) For the successful proposer, the ATC becomes the property of the Department after execution of the DB contract or payment of the stipend in accordance with subsection (d)(3) should the DB contract not be entered into by the parties.

C) For unsuccessful proposers, the ATC becomes the property of the Department after payment of the stipend in accordance with subsection (d)(3).

D) The Department may provide ATC review and one-on-one meetings with feedback to allow the proposer an opportunity to submit ATCs with all information needed for review and assessment.

E) The instruction to proposer will clarify any non-negotiable elements of a project and limitations on ATCs including possible FHWA concurrence requirements.

F) Information included in an ATC is kept confidential and is only disclosed by the Department to the selected proposer after the selected proposer executes a confidentiality agreement and conflict of interest disclosure and the Department acquires ownership of the unsuccessful proposers' ATCs.

Selection and Award

A) Each proposer submission, such as an SOQ and proposal, will be evaluated by the IPD evaluation committee. Each individual IPD evaluation committee member will review each submission independently, observing its strengths and weaknesses based on project specific evaluation criteria provided in the procurement documents. After all IPD evaluation committee members conduct an independent review, the IPD evaluation committee will meet to review each submission collectively and generate a consensus score for such submission. The consensus scores will be used to rank the proposers unless otherwise directed by the IPD bureau chief, after consultation with the SPO/CPO.

B) The highest ranked proposer will be selected, after consultation with the SPO/CPO, to serve as the DB contractor.

C) The Department will notify each proposer promptly after initial selection.

D) The award will occur upon notification to the selected proposer and completion of any conditions to award specified in the RFP.

E) After execution of a DB contract with the successful proposer, the Department may offer a debrief meeting with unsuccessful proposers.

F) If the successful proposer is unable or unwilling to execute the DB contract, the Department, after consultation with the SPO/CPO, may either award the DB contract to the next best value proposer or reprocure the project under any other delivery method.

Stipends

A) After execution of the DB contract, each unsuccessful proposer that submitted a compliant proposal and granted the Department the right to use any or all of the complaint proposer's work product contained in the compliant proposal is entitled to receive a stipend payment from the Department according to the terms, amount, and conditions specified in the ITP.

B) The Department's rights to the unsuccessful proposer's work product are contingent upon making the stipend payment.

C) If a procurement is cancelled after selection, the Department may readvertise and use any work product developed by the proposer for which the Department has paid the compliant proposer a stipend.

D) If the procurement is canceled prior to submittal of proposals, no stipend will be paid to any proposer.

E) If the procurement is canceled after proposals are submitted pursuant to an RFP, a stipend will be paid according to the terms, amount, and conditions specified in the ITP to all proposers submitting a compliant proposal to the extent the compliant proposers have granted the Department the right to use the compliant proposer's work product.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1060 Project Implementation

Oversight and contract compliance. The Department shall provide design reviews, constructability reviews, construction acceptance, oversight of utility relocations, independent quality assurance surveys, independent material testing, documentation of construction, risk mitigation, and oversight of construction activities, including construction management, maintenance of traffic, permit compliance, and other services which may include: value engineering, stakeholder coordination, or public involvement management through and in addition to the use of owner's representatives according to Section 6.1003.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1070 Project Labor Agreement

A CMGC contract, DB contract, or PDB contract shall require the design-build contractor, progressive design-build contractor or CMGC contractor to enter into a project labor agreement used by the Department unless the transportation project is federally funded and the application of those requirements would jeopardize the receipt or use of federal funds in support of the transportation project as determined by the Department. This requirement does not apply to construction-related professional services.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1080 Diversity

a) The Department's Office of Business and Workforce Diversity shall retain a staff member or consultant to act as a liaison for the Department on CMGC, PDB and DB project for outreach, monitoring, and compliance with the Disadvantaged Business Enterprise (DBE) program, consistent with all applicable state and federal laws and regulations that govern DBE requirements.

b) The Department shall determine attainable DBE utilization goals for all CMGC, PDB, and DB contracts in accordance with established Department and federal goal setting procedures for both professional and construction services.

c) The Department shall determine attainable DBE utilization goals for professional services contracts entered into under any owner's representative procurement in accordance with established Department policies and procedures.

d) Evaluation criteria developed for RFQ and RFP procurement documents shall address a proposer's record of past DBE utilization as well as planned future utilization of DBE consultants and contractors.

e) The Department shall publish an annual report regarding projects sourced under the CMGC, PDB, and DB project delivery methods shall include project DBE utilization goals and DBE utilization achieved.

History

Source: Added at 48 Ill. Reg. 10137, effective July 1, 2024

44 Ill. Adm. Code 6.1100 Purpose

The purpose of this Subpart is to establish policies and procedures to allow the Department to receive, review, and implement unsolicited proposals for public-private partnerships in accordance with the Illinois Procurement Code [30 ILCS 500] and the Public-Private Partnerships for Transportation Act [630 ILCS 5].

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1110 Definitions

As used throughout this Subpart, terms defined in the Illinois Procurement Code and the Public Private Partnership for Transportation Act have the same meaning as in the Code and the Public Private Partnership for Transportation Act and as further defined in this Subpart. Each term in this Subpart has the meaning set forth as follows unless its use clearly requires a different meaning.

"P3 Act" means the Public Private Partnerships for Transportation Act [630 ILCS 5].

"Agreement" means the public-private agreement between the selected proposer and the Department as a result of the unsolicited proposal process.

"Award" means the selection of a proposer to enter into an agreement with the Department.

"Best and Final Offer" means proposal revisions made by the responsive proposers to both technical and financial proposals as a part of the procurement process.

"Best Value" means an approach that provides the most efficient overall technical and financial solution for the public benefit.

"Best Value Proposal" means the responsive proposal that was determined to provide best value following the Department's evaluation.

"Commercial Close" means the execution of an agreement by the developer and the Department, at which point agreement is reached on all the commercial terms.

"Comprehensive Evaluation" means the thorough assessment of all aspects of an unsolicited proposal, including its feasibility, benefits, financial plan, and potential impact on the transportation system.

"Counterproposal" means a proposal submitted in response to the Department's notice that it will accept other proposals for the same project for which an unsolicited proposal was received.

"Counter Proposer" means a private entity that submits a counterproposal.

"Department" means the Illinois Department of Transportation.

"Developer" means the selected proposer that has executed an agreement with the Department.

"Eligibility Determination Review" means the process that the Department conducts based on pass/fail criteria to determine if an unsolicited proposal should advance to the preliminary evaluation phase.

"Financial Close" means the project milestone at which all project financing agreements have been executed and all conditions contained in the agreement that are necessary to enter into the financing agreements have been met.

"Initial Proposer" means the private entity that submits an unsolicited proposal to the Department.

"Interim Agreement" means a preliminary agreement entered into by the Department and selected proposer to govern early-phase project development activities following the evaluation and conditional acceptance of the unsolicited proposal and before the execution of the financial and commercial close.

"Multi-Year Program" or "MYP" means the Department's six-year plan for projects and estimated investments on the State and local highway systems.

"Preliminary Evaluation Phase" means the initial stage in the review process during which the Department will assess an unsolicited proposal.

"Prequalification" means the processes established by the Department in 44 Ill. Adm. Code 625 for the selection of architectural, engineering, and land surveying services, and 44 Ill. Adm. Code 650 for construction contractors.

"Public-Private Partnership" or "P3" means the partnership between a developer and the Department relating to one, or more, of the development, financing, and operation of a transportation project.

"Secretary" means the Secretary of Transportation of the State of Illinois.

"Selected Proposer" means the responsive proposer that the Department determines to have provided the best value proposal.

"Short-Listed Proposer" means the initial proposer or any superior counter proposer determined by the Department to be qualified and competitive to advance further in the selection process.

"State" means the State of Illinois.

"Unsolicited proposal" or "UP" means a written proposal for a transportation project submitted by a private entity to the Department on the initiative of a private sector entity or entities for the purposes of developing a public-private partnership that is not in response to a formal or informal request issued by the Department. (Section 10 of P3 Act)

"Value for Money Analysis" means a structured assessment process used to evaluate the overall economic benefits and costs of an unsolicited proposal that compares the financial, economic, and qualitative impacts of the proposed project against traditional public procurement or other feasible alternatives.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1120 Acceptance Period

Public notice of the acceptance period and details regarding the method of unsolicited proposal submission will be published on the Department's website at least 30 days before the opening date of the acceptance period.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1130 Proposal Review Fee

The Department will only accept the submission of an unsolicited proposal, if it is accompanied by the proposal review fee in accordance with Section 19 of the P3 Act.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1140 Eligibility Determination Review

a) The Department will review each unsolicited proposal to determine if the UP should be advanced to the preliminary evaluation phase. The Department will determine that an unsolicited proposal will not be eligible and will not be further evaluated if, without limitation:

The unsolicited proposal proposes a project that is already in procurement, planning or otherwise under consideration by the Department.
The unsolicited proposal proposes a project that the Department rejected, declined, or abandoned within the 24 months preceding the proposer's submission of such unsolicited proposal.
The unsolicited proposal does not meet the requirements set forth in Section 19 of the P3 Act.
The unsolicited proposal does not include a detailed cash flow model projecting all sources and uses of funds on an annual basis from financial close to the end of the term of the proposed agreement submitted in Excel format.
The unsolicited proposal does not include a value for money analysis, conducted by an independent third party, demonstrating the project's cost effectiveness.
The unsolicited proposal does not include a statement executed by the initial proposer acknowledging that the initial proposer has reviewed the prequalification requirements provided in Section 6.1270 and confirming that all firms and contractors for which prequalification is required that are included in the unsolicited proposal are either prequalified or can become prequalified.

b) If the unsolicited proposal passes the eligibility determination review, the Department will approve the advancement of the unsolicited proposal to the preliminary evaluation phase. If an unsolicited proposal does not pass the eligibility determination review, the proposal review fee will be returned to the initial proposer.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1150 Submission of Confidential Information

Proposers must clearly identify confidential, proprietary, or trade secret information. Information not clearly marked confidential may be disclosed.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1160 Preliminary Evaluation Phase

The Department will conduct preliminary evaluation of all unsolicited proposals that passed the eligibility determination review. The criteria that will be considered will include the unsolicited proposal's suitability for a public-private partnership delivery method, public need and benefits, economic development opportunities, market demand, stakeholder support, legislative consideration, and what efficiencies the unsolicited proposal may bring to the Department related to schedule, cost, and quality.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1170 Process After Preliminary Evaluation Phase

a) Authority to Initiate Unsolicited Proposal Procurement Process

The Department may not commence the procurement process for a project until authorized pursuant to Section 15(d) of the P3 Act.

b) Counterproposals

The Department will notify the public about the acceptance of counterproposals by posting an announcement on its website in accordance with Section 19 of the P3 Act. The notice shall contain the following:

A) The location and description of the project;

B) The means of submission; and

C) The acceptance period for receiving counterproposals.

Before issuing the request for counterproposals, the Department may conduct meetings or provide information to the public and interested participants in anticipation of the solicitation of counterproposals.

c) Required Elements of a Counterproposal

To maintain consistency and facilitate a fair evaluation, counterproposals must incorporate the same elements outlined in the initial submission of unsolicited proposals found in Section 6.1140.

d) Counterproposal Review Fee

At the time of a counterproposal submittal, the Department will require, the counter proposer to pay a proposal review fee payable to the Treasurer, State of Illinois.

e) Comprehensive Evaluation Phase

The Department will conduct a comprehensive evaluation of unsolicited proposals determined to be favorable during the preliminary evaluation phase, and counterproposals received during the counterproposal acceptance period. The comprehensive evaluation will be based on pre-established criteria, which will include cost, schedule, qualifications and experience of the proposer, project constructability, alignment with the multi-year program, public benefit, and other policy considerations.

f) Best and Final Offer Phase

If counterproposals meeting the unsolicited proposal submission requirements are received and are determined to be superior to the original unsolicited proposal during the comprehensive evaluation, the Department shall proceed with the best and final offer phase in accordance with Section 19 of the P3 Act.
Before determining the best value proposal, the Department will provide public notice of proposals and counterproposals to impacted communities and hold a public meeting in accordance with Section 19 of the P3 Act.
The successful short-listed proposer shall be the proposer offering the best value to the Department, as determined by the evaluation process. The Department will document the rationale for the selection, including a summary of the evaluation process and the final determination.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1180 Negotiation of Agreement

The Department will notify the selected proposer of the Department's selection, and the parties shall begin negotiations. The Department will notify all other short-listed proposers that their proposal was not selected.

a) If a mutually acceptable agreement cannot be reached, the Department may terminate negotiations. In such cases, the Department may:

Reject all proposals and conclude the procurement process.
Initiate negotiations with the short-listed proposer that submitted the next highest-ranked proposal. If those negotiations fail, the Department may, at its discretion, negotiate with the third-ranked proposer.

b) The Department may require the selected proposer furnish a proposal bond in an amount determined necessary to ensure compliance with the proposal commitments and protect the interests of the Department.

c) The Department may enter into an interim agreement with the selected proposer to facilitate project development prior to finalizing negotiation of the agreement. Any such interim agreement shall comply with the requirements of Section 30 of the P3 Act and may authorize the selected proposer to initiate specific non-construction, project-related activities for which compensation may be provided.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1190 Public Meeting on Selected Proposal

Before finalizing any agreement, the Department will hold one or more public meetings to allow stakeholders, community members, and interested parties to review and provide input on the proposed project and the selected proposal. At least seven days prior to each meeting, the Department will issue a public notice including the location and time of the meeting, the subject matter, a summary of the agreement, and the Department's determination that the selected proposal serves the public purpose of the P3 Act. (See ILCS 5/19.)

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1200 Protests and Appeals

All protests and appeals shall be governed by 44 Ill. Adm. Code 6, Subpart G.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1220 Commercial Close

The Department and selected proposer will negotiate the agreement based on the selected proposer's proposal. The agreement shall comply with the requirements of Section 35 of P3 Act. A commercial close is achieved upon full execution of the agreement or such later date as provided in the agreement.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1230 Financial Close

The developer shall finalize a comprehensive finance plan consistent with the agreement's financial structure. The Department will review and approve all financial documentation.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1240 Notice of Execution

The Department will publish notice and a copy of the executed agreement on its website and in newspapers of general circulation within the county or counties where the project is located. The notice will inform the public that any action to contest the validity of the agreement must be filed no later than 60 days from the date of publication.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1250 Project Implementation

The Department will provide oversight and ensure contract compliance through design reviews, constructability reviews, construction acceptance, utility relocation oversight, independent quality assurance surveys, independent material testing, construction documentation, risk mitigation, and oversight of construction activities, including construction management, maintenance of traffic, permit compliance, and other services, such as value engineering, stakeholder coordination, or public involvement management, through and in addition to the use of Department's representatives.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

44 Ill. Adm. Code 6.1260 Use of Prequalified Firms and Contractors

All firms and contractors that are proposed to perform services subject to the prequalification requirements of 44 Ill. Adm. Code 625 or 650 in an unsolicited proposal or counterproposal must be prequalified by the counterproposal due date stated in the notice for counterproposal acceptance. The developer is responsible for ensuring compliance with this requirement and shall ensure that selected firms and contractors maintain their prequalification status throughout the duration of their engagement on the project.

History

Source: Added at 50 Ill. Reg. 6426, effective April 27, 2026

Chapter IV Chief Procurement Officer for Capital Development Board

Part 8 Chief Procurement Officer for the Capital Development Board

44 Ill. Adm. Code 8.1 Short Title

This Part may be cited by its official name or as CPO-CDB Procurement Rules.

44 Ill. Adm. Code 8.5 Policy and Scope

Section 1-5 of the Illinois Procurement Code establishes the policy of the State to be that the principles of competitive bidding and economical procurement practices shall apply to all purchases and contracts by or for State agencies. The purpose of this Part is to establish the rules necessary and desirable to carry out that policy with respect to procurements of construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board and, therefore, subject to the jurisdiction of the Chief Procurement Officer for the Capital Development Board.

a) Sections 1-15.15, 10-5 and 10-20 of the Code establish the Chief Procurement Officer for the Capital Development Board as the person upon whom is imposed the duty to exercise all procurement authority created by the Code with respect to construction and construction-related services subject to the jurisdiction or responsibility of the Capital Development Board. Subject to exceptions established by the Code, that authority extends to the procurement of construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board.

b) Pursuant to Section 5-25 of the Code, the Chief Procurement Officer is also granted the authority to promulgate rules to carry out the authority to make procurements under the Code. This Part establishes rules necessary and appropriate to implement the requirements and grants of authority of the Code with respect to the procurements described in subsection (a).

c) Among the purposes and policies of this Part are:

The policy that the activities of all State actors in the procurement processes be undertaken to maximize the value of the expenditure of public funds and in a manner that maintains public trust in the integrity of those processes.
The intent to ensure that procurement activities are conducted in a manner that is uniform, consistent, fair and open so as to facilitate vendor participation in State procurements and encourage competition to the ultimate benefit of the State.

d) The procurement of office supplies, equipment, commodities and services required for the administrative operation of CDB is not subject to the jurisdiction of the CPO; rather, that procurement shall be conducted under the auspices of the CPO for General Services in accordance with 44 Ill. Adm. Code 1.

44 Ill. Adm. Code 8.15 Definition of Terms Used in This Part

Terms used in this Part shall have the meanings given to them in the Code and this Section unless a term's use in a particular context clearly requires a different meaning. A term may be defined in a particular Section for use in that Section.

"A/E" – An architectural or engineering firm that is in the business of offering the practice of furnishing architectural, engineering or land surveying services for building projects, that is registered with the Department of Financial and Professional Regulation (DFPR) and licensed to practice architecture, structural engineering or professional engineering in the State of Illinois, or that is properly authorized under the Professional Service Corporation Act and by DFPR to practice architecture, structural engineering or professional engineering in the State of Illinois. For purposes of this Part, this includes licensed individuals transacting business as sole proprietorships, which are not required to be registered with DFPR. Solicitation for procurement of services of architects/engineers (A/Es), or related professionals, shall be in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and CDB's rules at 44 Ill. Adm. Code 1000.

"Amendment" − A change in the terms or conditions of a contract, including, but not limited to, alterations to the scope of work, price, schedule, terms or conditions covered by the contract or the manner of performance or completion of the contract terms. An amendment may memorialize an action authorized by specific language in the contract (e.g., exercise of an option or showing price decrease or increase based on CPI), or may memorialize non-material changes (e.g., change in the names of notice contacts or number of periodic status meetings). An amendment to a written contract must be in writing to be effective. An amendment to a construction contract is known as a "change order" and an amendment to a design or construction-related professional service contract is known as a "modification". A change order or a modification is an amendment, but an amendment is not always a change order or a modification.

"Award" − The identification of a vendor with whom CDB intends to enter into a contract as evidenced by posting a Notice to Award or a Notice of Intent to Award to the Illinois Procurement Bulletin after all CDB-required and SPO approvals have been obtained.

"Bid" – The response to an Invitation for Bids.

"Bid Documents" − Documents that include, but are not limited to, the Standard Documents for Construction, advertisement for bids, bid forms including PC-2, MBE/FBE Business Enterprise Participation Form, drawings, and product and performance specifications following a format standard in the construction industry.

"Bidder" – Any person who submits a bid.

"Bid Officer" − A person designated to receive and open bids or offers.

"Board" – The seven member Capital Development Board appointed by the Governor.

"Brand Name Specification" – A specification limited to one or more items specified by manufacturers' names or catalogue numbers. A bidder may request product substitutions as specified in the Project Manual or SDC.

"Bulletin" or "Procurement Bulletin" − The volume of the Illinois Procurement Bulletin published by the CPO-CDB.

"CDB Act" –The Capital Development Board Act [20 ILCS 3105], CDB's enabling Act.

"Capital Development Board" or "CDB" – The State agency established by the CDB Act.

"Change Order" – A change in a contract term other than as specifically provided for in the contract that is determined necessary to address needs that are best performed by the contract holder, and that authorizes or necessitates any increase or decrease in the cost of the contract or the time of completion. [720 ILCS 5/33E-2(c)] Change orders that increase or decrease the cost by a total of $10,000 or more or the time of completion by a total of 30 days or more must be accompanied by a written determination that includes a statement that the circumstances said to necessitate the change in performance were not reasonably foreseeable at the time the contract was signed, the change is germane to the original contract as signed, or the change order is in the best interest of the State. [720 ILCS 5/33E-9] Renewals, change of a vendor's name, and modifications to design or construction-related professional service contracts are not change orders.

"Chief Procurement Officer" or "CPO" or "CPO-CDB" – The chief procurement officer appointed by the Executive Ethics Commission for procurements for construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board pursuant to Section 10-20(a)(2) of the Code.

"Code" – The Illinois Procurement Code [30 ILCS 500].

"Construction Management Services" – Includes, but is not limited to:

services provided in the planning and pre-construction phases of a construction project, including, but not limited to, consulting with, advising, assisting, and making recommendations to the Capital Development Board and architect, engineer, or licensed land surveyor on all aspects of planning for project construction; reviewing all plans and specifications as they are being developed and making recommendations with respect to construction feasibility, availability of material and labor, time requirements for procurement and construction, and projected costs; making, reviewing, and refining budget estimates based on the Board's program and other available information; making recommendations to the Board and the architect or engineer regarding the division of work in the plans and specifications to facilitate the bidding and awarding of contracts; soliciting the interest of capable contractors and taking bids on the project; analyzing the bids received; and preparing and maintaining a progress schedule during the design phase of the project and preparation of a proposed construction schedule; and

services provided in the construction phase of the project, including, but not limited to, maintaining competent supervisory staff to coordinate and provide general direction of the work and progress of the contractors on the project; directing the work as it is being performed for general conformance with working drawings and specifications; establishing procedures for coordinating among the Board, architect or engineer, contractors, and construction manager with respect to all aspects of the project and implementing those procedures; maintaining job site records and making appropriate progress reports; implementing labor policy in conformance with the requirements of the public owner; reviewing the safety and equal opportunity programs of each contractor for conformance with the public owner's policy and making recommendations; reviewing and processing all applications for payment by involved contractors and material suppliers in accordance with the terms of the contract; making recommendations and processing requests for changes in the work and maintaining records of change orders; scheduling and conducting job meetings to ensure orderly progress of the work; developing and monitoring a project progress schedule, coordinating and expediting the work of all contractors and providing periodic status reports to the owner and the architect or engineer; and establishing and maintaining a cost control system and conducting meetings to review costs. [30 ILCS 500/33-5]

"Construction Manager" or "CM" – Any individual, sole proprietorship, firm, partnership, corporation, or other legal entity providing construction management services for the Board and prequalified by the State in accordance with Section 33-10 of the Code. [30 ILCS 500/33-5]

"Construction-related Professional Services" – Services performed that are governed by the Architectural, Engineering, and Land Surveying Qualifications-Based Selection Act. “Professional services” means those services within the scope of the practice of architecture, professional engineering, structural engineering, or registered land surveying, as defined by the laws of this State.

"Contractor" or "Vendor" – An individual, firm, partnership, corporation, joint venture or other legal entity who seeks, or has entered into, a construction or construction-related professional services contract with CDB. The terms contractor and vendor are used interchangeably for purposes of the Code and this Part.

"Construction" – means building, altering, repairing, improving, or demolishing any public structure or building, or making improvements of any kind to public real property.

"Day" – A calendar day. In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday or a State holiday, as applicable, in which event the period shall run to the end of the next business day.

"DB Act" – The Design-Build Procurement Act [30 ILCS 537].

"Design and Construction Manual" or "DCM" – A contractual document that details the role of the A/E on a CDB construction project and contains standard forms and procedures.

"Design-Bid-Build" – The traditional delivery system used on public projects in this State that incorporates the Architectural, Engineering, and Land Surveying Qualification Based Selection Act and the principles of competitive selection in the Code.

"Design-Build" or "DB" – A delivery system that provides responsibility within a single contract for the furnishing of architecture, engineering, land surveying and related services as required, and the labor, materials, equipment, and other construction services for the project. [30 ILCS 537/10]

"Design-Build Contract" – A contract for a public project under the DB Act between the State construction agency and a design-build entity to furnish architecture, engineering, land surveying, and related services as required, and to furnish the labor, materials, equipment, and other construction services for the project. The design-build contract may be conditioned upon subsequent refinements in scope and price and may allow the State construction agency to make modifications in the project scope without invalidating the design-build contract. [30 ILCS 537/10]

"Design-Build Entity" – Any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that proposes to design and construct any public project under the DB Act. A design-build entity and associated design-build professionals shall conduct themselves in accordance with the laws of this State and the related provisions of the Illinois Administrative Code, as referenced by the licensed design professionals Acts of this State. [30 ILCS 537/10]

"Design Professional" – An individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation or other entity that offers services under the Illinois Architecture Practice Act of 1989, the Professional Engineering Practice Act of 1989, the Structural Engineering Licensing Act of 1989, or the Illinois Professional Land Surveyor Act of 1989.

"Designee" − A CDB employee or category of employees designated to exercise procurement authority on behalf of the CPO. A designee acts under procurement authority of the CPO or SPO and has the responsibility for taking procurement actions in accordance with applicable laws, rules and CDB's Standard Documents for Construction and Design and Construction Manual, as limited by the terms of the designation.

"Domestic Product" – A product that meets the requirements of the Procurement of Domestic Products Act.

"Drawings" – A technical drawing or set of drawings showing some or all requirements and elements of a construction project. Drawings fall within the definition of architecture or engineering, and follow a set of conventions that include particular views (floor plans, section, details, etc.), sheet sizes, units of measurement, assembly of components, annotations and cross references. Drawings are complemented by a project manual containing detailed construction specifications that are based on industry standards and which include general requirements, product and sourcing information, and instructions on performing the work. Individually or collectively these documents constitute "technical submissions".

"Evaluation Criteria" – The requirements for the separate phases of the selection process as defined in the QBS Act, the Design Build Procurement Act, or Article 33 of the Illinois Procurement Code for the selection of construction managers, and which may include the specialized experience, technical qualifications and competence, capacity to perform, past performance, experience with similar projects, assignment of personnel to the project, and other appropriate factors.

"Germane" – For purposes of the limitations on the expenditure of funds in excess of a contract price under Section 30-35 of the Code, additional work to be performed or materials to be furnished is "germane" to the original contract only if, in the services or materials are closely or significantly related to, arise out of, or are directly incident to the original contract. An initial determination of germaneness shall be made by CDB in writing subject to approval of the CPO or SPO. Additional work that is such a substantial departure from the nature, scope or scale of the original contract that it amounts to a new contract or could not fairly been said to have been bid shall not be considered germane.

"Modification" – A modification in a contract term other than as specifically provided for in the contract that is determined necessary to address needs that are best performed by the contract holder, and that authorizes or necessitates any increase or decrease in the cost of the contract or the time of completion. [720 ILCS 5/33E-2(c)] Modifications that increase or decrease the cost by a total of $10,000 or more or the time of completion by a total of 30 days or more must be accompanied by a written determination that includes a statement that the circumstances said to necessitate the change in performance were not reasonably foreseeable at the time the contract was signed, the change is germane to the original contract as signed, or the change order is in the best interest of the State. [720 ILCS 5/33E-9] Renewals, change of a vendor's name, and change orders to construction contracts are not modifications.

"Offer" or "Proposal" − The response to a Request for Proposal in the form of a letter of interest or statement of qualifications.

"Offeror" – A person who responds to a Request for Proposal.

"Person" − Any business, public or private corporation, partnership, individual, union, committee, club, unincorporated association or other organization or group of individuals, or other legal entity. [30 ILCS 500/1-15.55]

"Proceed Order" – A written directive or agreement amending a contract to allow germane and necessary work to proceed in a manner otherwise not provided for in the contract and subject to a fixed maximum price prior to the finalizing of a change order. The change order establishes the actual price, which may not exceed the maximum established by the proceed order.

"Procurement Compliance Monitor" or "PCM" − Person appointed by the Executive Ethics Commission (EEC) under Section 10-15 of the Code to oversee and review procurement processes, including services procured in accordance with the QBS Act [30 ILCS 535] and the DB Act [30 ILCS 537].

"Procurement Officer" – The CPO, SPO or CPO designee who is responsible for a particular procurement.

"Procurement Policy Board" or "PPB" − The body created by Section 5-5 of the Code.

"Project Manual" – Contractual documents that provide directions to the contractor that follow a format standard to the construction industry.

"Purchasing Agency" − A State agency that enters into a contract at the direction of the CPO or an SPO authorized by the CPO. [30 ILCS 500/1‑15.70]

"Qualifications Based Selection" or "QBS" –The selection of construction-related professional services in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

"QBS Act" – The Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

"Renewal" – Except for Real Property and Capital Improvement Leases, an agreement between the parties to a contract to authorize an additional contract period under the terms and conditions of the renewal provision in the contract.

"Request for Information" or "RFI" − The process of requesting information from potential vendors or other interested persons for the purpose of educating the State as to the range of available technical solutions and procurement options. This type of RFI is not a procurement method and does not result directly in the award of a contract.

"Request for Proposals" or "RFP" – A notice of projects and services to be procured that is published for purposes of the solicitation of letters of interest or statements of qualifications from construction managers under Article 33 of the Code or from architects, engineers or land surveyors under QBS or of proposals from design-build entities or commissioning agents.

"Respondent" – A person who responds to an RFI.

"Responsible Bidder" or "Offeror" – Includes a person who has the capability in all respects to perform fully the contract requirements and who has the integrity and reliability that will assure good faith performance. A responsible bidder or offeror shall not include a business or other entity that does not exist as a legal entity at the time a bid or proposal is submitted for a State contract. [30 ILCS 500/1-15.80] Additional responsibility requirements related to construction contractors are enumerated in Section 30-22 of the Code.

"Responsive Bidder" – A person who has submitted a bid that conforms in all material respects to the Invitation for Bids. [30 ILCS 500/1-15.85]

"Responsive Offeror" – a person who has submitted an offer that conforms in all material respects to the request for proposals.

"Scope and Performance Criteria" – The requirements for the public project, including, but not limited to, the intended usage, capacity, size, scope, quality and performance standards, life-cycle costs, and other programmatic criteria that are expressed in performance-oriented and quantifiable specifications and drawings that can be reasonably inferred and are suited to allow a DB entity to develop a proposal.

"Scoring Tool" – The document used by the individuals evaluating the responses to a solicitation to judge qualifications or otherwise show whether or how well the responses met requirements set forth in the solicitation.

"Single Prime" – A contracting method whereby one contractor provides all subdivisions of the work necessary to complete the construction project. These subdivisions include, but are not limited to, plumbing, heating, ventilating, electrical, fire protection, temperature control, and general work.

"Solicitation" – The document (e.g., IFB or RFP) posted to the Bulletin requesting interested contractors or vendors to submit a bid, offer or proposal for evaluation by the State. An RFI is not considered a solicitation.

"Specifications" – Any description, provision or requirement pertaining to the physical or functional characteristics, or of the nature of, a supply, service, or other item to be procured under a contract. Specifications may include a description of any requirement for inspecting, testing, or preparing a supply, service, professional or artistic service, construction, or other item for delivery. [30 ILCS 500/1-15.95] Specifications include the Standard Documents for Construction, Design and Construction Projects, and Standard Documents for Design-Build Projects Manual for general application and repetitive use, as well as specifications applicable to a specific project which are contained in the Project Manual and drawings.

"Standard Documents for Construction" or "SDC" – The document incorporated and made a part of CDB construction contracts that contains the requirements and obligations of contractors and design professionals and that applies to all CDB projects.

"Standard Documents for Design-Build Projects" − A contractual document that details the role of the A/E on a CDB design-build project and contains standard forms and procedures.

"State" − The State of Illinois, a State agency as defined in the Code, and all officers and employees of the foregoing, as appropriate, collectively or individually.

"Statement of Qualifications" − The information supplied by a vendor in response to an RFP that describes the specific experience and expertise that may qualify the vendor to provide the services requested.

"State Purchasing Officer" or "SPO" – A person appointed by the CPO pursuant to Section 10-10 of the Code and assigned to exercise procurement authority with respect to CDB, at the direction of the CPO.

"State Witness" – An employee of the State who, as part of his or her official duties, is assigned to observe the opening of bids or sealed proposals.

"Subcontract" – A contract between a person and a person who has a contract subject to the Code, pursuant to which the subcontractor provides to the contractor, or, if the contract price exceeds $50,000, another subcontractor, some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary contract, including, among other things, subleases from a lessee of a State contract. [30 ILCS 500/1-15.107]

"User Agency" − The agency or unit of government for which CDB carries out a construction project.

44 Ill. Adm. Code 8.20 Referenced Materials

The following State statutes are referenced in this Part:

a) Illinois Procurement Code [30 ILCS 500];

b) The Design-Build Procurement Act [30 ILCS 537];

c) Architectural, Engineering, and Land Surveying Qualification Based Selection Act [30 ILCS 535];

d) Capital Development Board Act [20 ILCS 3105];

e) Professional Service Corporation Act [805 ILCS 10];

f) Illinois Architecture Practice Act of 1989 [225 ILCS 305];

g) Professional Engineering Practice Act of 1989 [225 ILCS 325];

h) Structural Engineering Licensing Act of 1989 [225 ILCS 340];

i) Illinois Professional Land Surveyor Act of 1989 [225 ILCS 330];

j) Procurement of Domestic Products Act [30 ILCS 537];

k) Business Enterprise for Minorities, Females, and Persons with Disabilities (BEMFD) Act [30 ILCS 575];

l) Freedom of Information Act (FOIA) [5 ILCS 140];

m) Prevailing Wage Act [820 ILCS 130];

n) Illinois Human Rights Act [775 ILCS 5];

o) Local Government Professional Services Selection Act (LGPSS Act) [50 ILCS 510];

p) Illinois False Claims Act [740 ILCS 175];

q) Criminal Code of 2012 [720 ILCS 5];

r) Illinois Use Tax Act [35 ILCS 105];

s) Illinois Environmental Protection Act [415 ILCS 5];

t) Public Officer Prohibited Activities Act [50 ILCS 105];

u) Lobbyist Registration Act [25 ILCS 170];

v) Illinois Securities Law of 1953 [815 ILCS 5];

w) Governmental Joint Purchasing Act [30 ILCS 525];

x) Steel Products Procurement Act [530 ILCS 565];

y) Project Labor Agreements Act [30 ILCS 571].

44 Ill. Adm. Code 8.25 Property Rights

No person shall have any right to a specific contract with the State unless that person has a contract that has been signed by an officer or employee of the purchasing agency with appropriate signature authority. The State shall be under no obligation to issue an award or execute a contract. [30 ILCS 500/1-25] No person who participates in a procurement action has any right to an award or subsequent contract. No notice of award can be issued and no contract can be executed without the written determination of a Procurement Officer. Neither receipt of a solicitation or other procurement documents nor submission of any response to a solicitation or other procurement request, solicited or otherwise, confers any right to receive an award or contract or contractually obligates the State in any manner.

44 Ill. Adm. Code 8.530 Policies and Procedures

a) The CPO may issue policies and procedures to further implement the Code and this Part. Policies and procedures shall be maintained in a structured format. The CPO shall periodically review policies and procedures and determine if any should be issued as an administrative rule.

b) The CPO shall notify the PPB of changes to policies or new policies. The CPO may give notice by including the PPB on the standard distribution list.

44 Ill. Adm. Code 8.1005 Procurement Authority

b) The authority extends to all aspects of the procurement process, including, but not limited to, pre-solicitation activities, solicitation preparation, source selection, evaluation, award, contracts, contract amendments and records.

c) Any reference in the Code or this Part directing or authorizing a State agency to take procurement action is subject to the general procurement authority of the CPO and SPO as set forth in the Code and this Part.

d) The CPO exercises procurement authority directly or through one or more SPOs or temporary acting SPOs, designees, and CDB staff assigned to the procurement function. Those assigned to assist shall recognize the role and authority of the CPO. The CPO may reserve certain procurement activities to the CPO and reserves the right to review and modify or overturn any action of an SPO or any other designee.

e) An SPO will exercise procurement authority in accordance with direction and limitations established by the CPO. The SPO will act primarily to review, authorize and approve State agency procurement. The CPO and SPO will determine and identify, in writing, procurement activities that must be conducted by the CPO or SPO. Other procurement activities not so identified will be conducted by the CDB staff with CPO/SPO oversight.

f) CDB shall determine and provide an appropriate number of qualified staff and related resources to assist the SPO in meeting the procurement needs of the CDB. CDB staff, while acting to assist the SPO, remain CDB employees.

g) CDB is responsible for assisting User Agencies in determining need for a procurement and, upon direction or request, to provide a rationale to the CPO or SPO for the proposed transaction or activity before the procurement may commence. Additional justification may be required by the CPO or SPO at later stages of the procurement process. The CPO or SPO may require that the justification include a statement that the proposed activity or transaction meets legal requirements and State agency policies and is in the best interest of the State of Illinois and the State agency. If, at the culmination of any of the procurement processes covered by this Part, CDB determines to proceed with the execution of a contract, CDB shall have authority to fully execute and file the contract for payment if, and only if, a Procurement Officer has given prior, written approval of the contract. The Procurement Officer's approval may be indicated by signature on the contract itself or by signature on a separate form affixed to the contract.

h) CDB staff are responsible:

For ensuring that all procurement activities, including those submitted to the SPO or CPO-GS for review, authorization or approval are in accordance with the Code, this Part, other applicable laws and rules, the internal policies of the State, the internal policies of the State agency; and
For obtaining all State and State agency approvals applicable to the particular stage of the procurement process.

i) The CPO has the authority to approve or reject contracts for a State agency. In addition to this authority the CPO may direct an SPO to approve or reject contracts for CDB, authorize an SPO to further authorize CDB to enter into contracts, or authorize CDB to enter into contracts. The head of CDB has the authority to sign and enter into a contract once a SPO provides written approval of the contract. The CPO shall determine in writing which contracts, if any, must be signed by the CPO. The CPO shall determine in writing which contracts may be signed by an SPO or CDB. These signature authorities may be modified or revoked at any time by the CPO or SPO, when appropriate.

Any written determination regarding signature authorization shall be maintained by the CPO and distributed to the SPO, CDB head, agency purchasing director and the State Comptroller.
If the CPO or SPO signs a contract, the State agency must also sign in order for the contract to be legally binding on the agency.
If the CPO and SPO do sign or approve a contract, in no event shall the CPO or SPO assume any responsibility or obligation under the contract, financial or otherwise, to any party or person.

j) Procurement Compliance Monitors (PCMs)

PCMs have roles and responsibilities established in Section 10-15 of the Code. This includes monitoring procurement activities of CDB, having access to records and systems, and attending any procurement meeting, including procurement activities conducted in accordance with the QBS Act and the DB Act.
CDB shall recognize these statutory roles and shall cooperate with PCMs in the conduct of their actions. Cooperation includes the giving of prior notice of, and access to, procurement meetings, when reasonable, and access to all procurement related records in whatever format they may exist, including documents, databases and systems. Failure to cooperate and resolve issues may be reported to the CDB Executive Director and, in certain cases, may require reporting to the Office of the Executive Inspector General for the agencies of the Illinois Governor.
Failure to cooperate with the PCM may also be reported to the chairman of the Board and Executive Director of CDB and in certain cases may require reporting to the Office of the Executive Inspector General or other authority.
Should a PCM request review of a contract before final execution, CDB shall not execute the contract until approved by the SPO after consultation with the PCM and CDB.

44 Ill. Adm. Code 8.1040 Central Procurement Authority of the Cpo

a) Procurement Requests

CDB must initiate the procurement process through submission of a procurement request to the CPO. The CPO shall designate the format and requirements for submission. Should a PCM request review of a contract before final execution, CDB shall not execute the contract until approved by the SPO after consultation with the PCM and CDB.

b) Chief Procurement Officer's Authority to Reject

When the CPO, after consultation with CDB, decides that processing the requested procurement is clearly not in the best interest of the State, or that further review is needed, the CPO shall return the procurement request to CDB. A written statement of the reasons for its return shall accompany the returned request.

c) Determination of Contractual Terms and Conditions

The CPO or SPO has authority to approve the terms and conditions of solicitations and contracts. The CPO will consult with CDB if CDB requests special terms and conditions.

44 Ill. Adm. Code 8.1050 Delegation

a) The CPO may delegate to any SPO or, in consultation with the CDB Executive Director, to CDB authority, to conduct certain named activities or functions.

b) Delegations of authority to designees shall be in writing and shall specify:

the activity or function authorized;
that the activity or function shall be in accordance with this Part, the Illinois Procurement Code, QBS Act, DB Act and all related statutes;
any limits or restrictions on the exercise of the delegated authority;
whether the authority may be further delegated;
the CPO with authority for the function or activity;
the duration of the delegation; and
any reporting requirements.

c) Notwithstanding the provisions of subsection (b), any activities delegated under this Section are subject to review by the CPO, PCM or SPO and modification or cancellation by the CPO.

44 Ill. Adm. Code 8.1501 Illinois Procurement Bulletin

a) The Illinois Procurement Bulletin consists of four volumes, one for each of the Chief Procurement Officers designated in the Code. Each volume will contain information relating to procurements under the authority of the appropriate CPO. References in this Part to the Bulletin mean the volume published by the CPO, unless the context indicates a different meaning.

b) The CPO shall have all rights to, and is the authority for, publishing the Bulletin. The CPO, shall, in consultation with CDB, determine the content, form, function, organization and structure and may make revisions as necessary.

c) Whenever this Part charges CDB with publishing a notice or other information in the Bulletin, CDB must receive the prior written approval of the Procurement Officer.

d) The Bulletin shall be published in electronic, web accessible form. In addition, the Bulletin may be made available in print.

44 Ill. Adm. Code 8.1525 Bulletin Content

a) The Bulletin will contain all content required by the Code. The Bulletin may include reference information of general interest (e.g., how to access the other volumes of the Bulletin, notice of new legislation, announcements and determinations) and may serve as the CPO's official website.

b) Notice of each procurement shall contain at least the following information:

the name of the purchasing and using agency, if different;
a brief description of the project with respect to which the services are being procured and of the services sought in the particular solicitation;
a project reference number;
the date the procurement is first offered (procurements that require notice shall not be distributed to vendors prior to the date the notice is first published in the Bulletin);
the date, time and location for submitting bids or proposals;
the method of source selection;
the name and contact information of the SPO in charge and the name of the CDB Project Manager assigned to the procurement;
instructions on how to obtain a comprehensive purchase description and any disclosure and contract forms;
encouragement to prospective vendors to hire qualified veterans;
encouragement to prospective vendors to hire qualified Illinois minorities, women, persons with disabilities and residents discharged from any Illinois adult correctional center; and
any unique evaluation scoring criteria.

c) The SPO shall send notice of bid opening results electronically directly to each bidder or offeror on the day of bid opening and posted on the CDB website no later than the next day after the bid opening.

d) Notice of the award that was subject of a notice in subsection (b) shall be issued electronically by the SPO on the day of the award to those bidders or offerors submitting responses to the solicitation and no later than the next day after the award on the CDB website. Should the SPO fail to send notice of award to bidders or offerors submitting responses to the solicitation, the time for filing a bid protest will be extended a day for each day the notice of award is late, up to 5 business days. No later than the end of the next business day, CDB shall publish the notice of award to its website.

e) The SPO shall publish the notice of award in the Bulletin. This notice shall contain at least the following information:

the information published under subsections (b)(1) through (7);
contract price and the name of the vendor selected for award;
the number of unsuccessful responding vendors;
for each vendor who submitted a response:

A) the vendor's name;

B) the amount bid; and

C) the percentage of business enterprise utilization plan;

the total number of veteran owned small businesses and service disabled veteran owned small businesses that submitted bids and the percentage of veteran utilization plan; and
other disclosures required to be published in the Bulletin.

f) In addition to the notice requirements of subsection (e), for solicitations, CDB shall post notice of the apparent low bidder's award and all other bids from bidders responding to the solicitation on its website the next business day or may include a link to the Bulletin for the detailed information of the award.

g) If CDB awards to other than the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation to bid pursuant to Section 20-10(g), an SPO must post in the Bulletin a written explanation with the notice of award. The written explanation must also be filed with the Legislative Audit Commission and must include:

a descriptions of CDB's needs;
a determination that the anticipated cost will be fair and reasonable;
a listing of all responsible and responsive bidders; and
the name of the bidder selected, the total contract price and the reasons for selecting that bidder.

h) Publication of Award

The SPO shall publish in the Bulletin the following information regarding emergency procurements within 3 business days after award of an emergency contract:

A) name of the procuring agency (and using agency, if different);

B) name of the vendor selected for award;

C) brief description of what services or supplies the vendor is authorized to provide;

D) total price (if only an estimate is known, it shall be published, but a subsequent notice repeating all required information shall be published when the final amount is known);

E) reasons for using the emergency method of source selection;

F) name of the SPO and the name of the CDB personnel on the purchasing staff in charge of the procurement;

G) the name of the user agency official or officials who initiated the emergency contract action in accordance with Section 8.2030(f)(2); and

H) affidavit of emergency procurement, if available, and if not available, to be filed as an amendment to the notice within 10 days after the emergency procurement.

For purposes of this subsection (h), an emergency contract is "awarded" when a Procurement Officer authorizes a vendor to commence work in accordance with Section 8.2030 or when a fully executed contract is issued, whichever occurs first.

i) In addition to the requirements of subsection (h), the notice of hearing to extend an emergency contract must be posted electronically in the Bulletin at least 14 days prior to hearing.

j) The following information in regard to sole source procurements shall be published by the CPO in the Bulletin at least 14 days prior to the award of a contract to a sole source vendor or as many days before the holding of any public hearing pursuant to Section 20-25(a) of the Code:

name of the purchasing agency (or using agency, if different);
name of the intended sole source vendor;
a description of what services or supplies CDB intends to procure;
contact information for the CPO and the name of the CDB personnel on the purchasing staff in charge of the procurement;
the date, time and location of the a scheduled public hearing with an explanation that the hearing will be cancelled if no hearing request is received; and
a completed sole source justification form as prescribed by PPB.

k) CDB shall post in the Bulletin a copy of its annual report of utilization of businesses owned by minorities, females and persons with disabilities. Posting is due within 10 days after CDB submits its report to the Business Enterprise Council pursuant to Section 6(c) of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act [30 ILCS 575].

l) As determined by the CPO, other notices shall be published in the Bulletin as provided by the Code, including notices related to suspensions and debarment, Business Enterprise Program and Small Business Set-Aside waivers, and other matters of public interest.

m) The CPO may allow another CPO or another governmental entity to publish procurement related notices and other matters of public interest in the Bulletin.

44 Ill. Adm. Code 8.1535 Vendor Portal

a) In consultation with the PPB and State agencies, the CPO may operate a vendor portal, use another CPO's vendor portal, or jointly operate a vendor portal with other Chief Procurement Officers if a single portal better serves the needs of State agencies and the vendor community. A vendor portal shall allow prospective vendors to:

Provide certifications, disclosures, registrations and other documentation needed to do business with the State in advance of a particular procurement;
Submit the vendor's registration number, with a confirmation that the portal information is current, as part of the vendor's response to a competitive selection or a contracting process.

b) The CPO may accept the registration of a vendor from another CPO's vendor portal, provided the portal information is current, in lieu of certifications, disclosures, registrations and other documentation needed to do business with the State in advance of a particular procurement.

44 Ill. Adm. Code 8.1560 Alternate and Supplemental Notice

a) If the electronic Bulletin cannot be published, the CPO may publish notices in one of the other CPO's Procurement Bulletin on an interim basis. If no electronic version of the Bulletin can be published, the CPO may designate its website as its volume of the Bulletin. If necessary, the CPO may designate the Official State Newspaper or other newspaper of general circulation as its volume of the Bulletin. All newspaper notices will be published in the Bulletin when it becomes available, but that publication will not extend any procurement-related timeframes.

b) Publication in the Bulletin may be supplemented in order to reach a broader pool of vendors by publication elsewhere at the discretion of the CPO or SPO. Examples include publication in:

print or online newspapers;
industry publications or websites; or
CDB or user agency website.

44 Ill. Adm. Code 8.1570 Error in Notice

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin and elsewhere in the same manner as the original notice within 30 days after the time the error is known. A correction that results in a change of procurement method or a material change in the requirements set forth in a solicitation may require extension of the time to respond to the original solicitation. The duration of the extension shall be set forth in the correction. Extensions may be granted at the discretion of the Procurement Officer, taking into consideration impacts on the State as well as on vendors.

44 Ill. Adm. Code 8.1580 Direct Solicitation

In addition to giving notice in the Bulletin, a Procurement Officer CDB, the A/E or the user agency may directly contact prospective vendors. Direct solicitation may be oral or in writing, but all vendors shall receive the same information as provided in the Bulletin. No direct solicitation shall be made prior to the date any required notice first appears in the Bulletin.

44 Ill. Adm. Code 8.1585 Notice Time

Each solicitation shall be published in the Bulletin at least 14 days prior to the date set for opening, unless a shorter time is authorized by the Code or this Part.

44 Ill. Adm. Code 8.1595 Availability of Solicitation Document

The content of a solicitation shall not be distributed to vendors or otherwise to the public prior to the date the solicitation is first published in the Bulletin.

44 Ill. Adm. Code 8.2005 General Provisions

a) Solicitation. A solicitation will contain forms that must be returned or may require completion in a prescribed format. If a form or format is prescribed, prospective vendors shall submit those forms as instructed.

b) Late Bids or Proposals, Late Withdrawals and Late Modifications

Any bid or proposal (including any modification, withdrawal or other procurement related submission) received after the time and date for receipt, or at other than the specified location, is late. A submission that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall not be considered to be late. Staff at the incorrect delivery location shall not be responsible for ensuring subsequent delivery. Delivery at the specified location and time shall be the sole responsibility of the bidder or offeror.
No late submission will be considered unless the SPO, and not a designee, determines it would have been timely but for the action or inaction of State personnel directly serving the procurement activity (e.g., providing the wrong address). It is the responsibility of the bidder or offeror to ensure delivery at the time and to the place specified. A vendor that submits a late response will be notified and given the opportunity to retrieve the submission at its cost. Late submissions not returned to the vendor will be destroyed after all related procurement activity is complete and the resulting contract has been executed.
Records shall be made and kept for each late bid or proposal, late modification, or late withdrawal. The record shall include time of receipt, method of delivery (e.g., hand-delivered, overnight mail), name of vendor and person making delivery, and a brief description of the circumstances, if known, that caused the delivery to be late.

c) Extension of Solicitation Due Date

The SPO or a designee may, prior to the due date, extend the time for submitting or modifying a bid or proposal for the convenience of the State. If notice to extend cannot be made in a manner that fosters a competitive procurement, the opening will be cancelled and rescheduled. All notices under this Section will be provided electronically and posted on the CDB Procurement Bulletin.

d) Bid Firm Time

Unless otherwise provided in the solicitation, the vendor's bid must be kept firm for at least 60 days after the opening date.
After opening bids, the SPO or a designee may request bidders to extend the offer firm time for an additional 60 days, provided that, with regard to offers, no other change is permitted. An extension beyond this will require approval from the Procurement Officer. CDB must submit a detailed written explanation of the need for extension with the request for additional extension. This Extension does not provide an opportunity for others to submit bids or proposals.

e) Offer Firm Time

Unless otherwise provided in the solicitation, the vendor's offer must be kept firm for at least 120 days after the opening date.
After opening proposals, the SPO or a designee may request offerors to extend the offer firm time for no more than an additional 60 days, provided that, with regard to offers, no other change is permitted. An extension beyond this will require approval from the Procurement Officer. CDB must submit a detailed written explanation of the need for extension with the request for additional extension. This extension does not provide an opportunity for others to submit offers.

f) Electronic Submissions

The solicitation may state that electronic submissions will be considered if they and any required attachments are received in the manner and by the time and date set for receipt, as stated in the solicitation.
Electronic submissions authorized by specific language in the solicitation will be opened in accordance with electronic security measures in effect at the time of opening.

g) All bids/offers received shall be time-stamped, and if received via hard copy, recorded on a log and stored in a secure, locked file cabinet or safe and under the control of the bid officer. The bid officer shall maintain the confidentiality of the bid/offer submittals. No information regarding bids/offers received shall be disclosed to anyone except to confirm receipt to the bidder or offeror.

h) Only One Bid or Proposal Received

If only one bid or proposal is received, and if it meets the thresholds established by the Capital Development Board of Director's Resolutions, the SPO may award to the single bidder or offeror if the SPO finds that the price submitted is fair and reasonable, and that other prospective bidders or offerors had reasonable opportunity to respond, or there is not adequate time for resolicitation. Otherwise, the SPO may cancel the procurement and CDB will return the bids.

i) Unit Prices

Unit price items may be included in project specifications only if stated in a solicitation. The interest of the State must be protected from unlimited increased quantities.

j) Alternate Bids

Subject to Procurement Officer approval, CDB shall, with the assistance of the A/E and user agency, determine what parts or features of the work are most essential and, due to the limit of available funding, what discretionary elements may or may not be included in the project. Essential elements must be included in the base bid. All discretionary work must be identified in the IFB as alternates. To the extent discretionary elements are included, CDB shall identify discretionary work items in the order in which CDB will award the work at time of posting the bid. The alternates may be additive or deductive values. The lowest bidder shall be determined by the amount of the base bid plus accepted alternates. If not all the alternate bids are accepted at the award time, an alternate may be added to the project at a later time by change order if funding becomes available. If, however, acceptance of the alternate prior to award would have resulted in changing the lowest bidder, the alternate can only be added by change order upon approval of the SPO.

k) Assignment, Novation or Change of Name

Assignment. No CDB contract is transferable, or otherwise assignable, without the prior written consent of the CPO or SPO; provided, however, that a vendor may assign money receivable under a contract after due notice to CDB. The assignee, except in the case of assignment for payment only, must meet all requirements for contracting with CDB. Any purported assignment without prior written consent shall be null and void. The decision to consent with respect to QBS, Construction Management, or design-build contracts shall be based upon consideration of, among other things, the continued availability of personnel whose qualifications served as the basis for the original award and the importance of the professional and artistic judgment of those persons, the qualifications of replacement staff, and the extent to which the services have already been performed.
Recognition of a Successor in Interest; Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with CDB;

C) the transferor waives all rights under the contract as against the State; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the State, furnish a satisfactory performance bond.

Change of Name. A vendor may submit to the SPO a written request to change the name in which it holds a contract with CDB. The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.

l) Incorporation by Reference

A solicitation may incorporate documents by reference provided that the incorporated materials are readily available to potential bidders and the solicitation specifies where the documents can be obtained.

m) Confidential Data

Vendors must clearly identify, by page and paragraph, any information submitted to the State claimed to be exempt from the disclosure requirement of the Illinois Freedom of Information Act (FOIA), identify the specific Section of FOIA applicable to the claimed exemption, and show how that Section applies to the information claimed to be exempt. Information submitted without a claim or exemption may be disclosed to the public without notice or permission. Information submitted with a claimed exemption may still be disclosed to the public if determined by a court, the Public Access Counselor appointed by the Illinois Attorney General, or the agency receiving the FOIA request that the claimed exemption does not meet the requirements for withholding the information under FOIA. The agency receiving the FOIA request shall attempt to provide the vendor reasonable notice and opportunity to object to the disclosure of any material claimed by the vendor to be exempt from FOIA.

n) Notice of Subcontractor

Any contract entered into under this Part shall state whether the services of a subcontractor will be used. The contract shall include the names and addresses of all known subcontractors with subcontracts with an annual value of more than $50,000, the general type of work to be performed by each subcontractor and the expected amount of money each will receive under the contract.
If, at any time during the term of the contract, a contractor desires to add or change any subcontractors with subcontracts with an annual value of more than $50,000, the contractor shall promptly notify CDB, in writing, of the names and addresses of the proposed subcontractors, the expected amount of money each new or replaced subcontractor will receive, and the general type of work to be performed. Subcontractors shall be required to register with CDB prior to entering into an agreement and provide financial disclosure and standard certifications prior to entering into a contract with the Prime Contractor.
No contractor shall change a subcontractor listed in the original bid or proposal, except with the consent of the SPO for good cause.

A) Good cause may include:

i) the failure of the subcontractor to execute a written contract after a reasonable period of time after the written contract is presented to the subcontractor by the contractor;

ii) bankruptcy of the subcontractor;

iii) the death or disability of the subcontractor, if the subcontractor is an individual;

iv) dissolution of the subcontractor, if the subcontractor is a corporation or partnership;

v) failure of the subcontractor to meet bond requirements as specified in the solicitation;

vi) ineligibility of the subcontractor to perform on the subcontract because the subcontractor is suspended, debarred, or otherwise ineligible to perform;

vii) a series of failures by the subcontractor to perform in accordance with the specifications, terms and conditions of its subcontract;

viii) failure of the subcontractor to comply with a requirement of law applicable to the subcontractor; or

ix) failure or refusal of the subcontractor to perform the subcontract.

B) A request of a contractor for a substitution of a listed subcontractor shall be submitted in writing to the agency and SPO and shall include the reasons for the request. The contractor shall provide a copy of its request for substitution to the listed subcontractor by registered or certified mail to the last known address of the subcontractor.

C) No contractor shall permit any subcontract to be assigned or transferred or performed by any entity other than the subcontractor listed on the bid or proposal without the consent of the SPO. Consent of the SPO to a contractor for a substitution shall be made in writing and be included in the procurement file.

D) Failure of a contractor to comply with this Section may result in cancellation of its contract or be considered grounds for suspension or debarment.

o) Pre-Solicitation Assistance

For purposes of this subsection (o):

A) "business" includes all individuals with whom a business is affiliated, including, but not limited to, any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder of a business [30 ILCS 500/50-10.5(e)]; and

B) "agent of the State" is limited to an A/E under contract with CDB or a consultant to the A/E.

Prohibited Bidders or Offerors. Except as provided in subsection (o)(3), Section 50-10.5(e) of the Code prohibits any person or business from bidding or entering into a contract if the person or business assisted an employee of the State of Illinois, who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract, by reviewing, drafting, directing, or preparing any invitation for bids, request for proposal or request for information or provided similar assistance.
Non-Prohibited Acts. Subsection (o)(2) does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

A) Provides the assistance as part of a publicly issued opportunity to review drafts of all or part of the IFB, RFP or RFI.

B) Initiates the communication to provide general information about products, services or industry best practices and, if applicable, that communication is documented in accordance with Section 50-39 of the Code.

C) Responds to a communication initiated by an employee or agent of the State for the purposes of providing information to evaluate new products, services or technologies.

D) In the case of a vendor who bids or offers to supply technology, goods or services developed by the vendor, demonstrates the technology, goods or services in such a way as to represent industry trends and innovation and not in a way specifically designed to meet the State's needs.

E) Receives or possesses written material obtained from a State employee from public sources, such as through an internet search or literature packets obtained in conjunction with an event such as a trade show.

F) Provides, at the request of the State or agent of the State, general marketing material or makes a general sales presentation to show the person's qualifications or product capabilities. Material may be personalized for the procuring agency provided any personalization is obtained from publically available sources.

G) For purposes of this subsection (o), "agent of the State" is limited to an architect/engineer under contract with CDB, or a consultant to that A/E.

Prohibited Acts

A) Specifications. A person or business may not submit specifications to a State agency unless requested to by a State employee.

B) Assistance to State Employees. A person or business is prohibited from bidding on a solicitation and from having a contract or subcontract arising from any of the following activities if the person or business assisted an employee of the State agency who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract. Assistance to a State employee may include any of the following:

i) Draft (writes or assists the State with writing all or part of the procurement document);

ii) Review (reads the document and provides comments on the procurement document or signifies approval or disapproval);

iii) Direct (any activity relating to giving instructions or commands or in supervising or overseeing the preparation of the procurement document);

iv) Prepare (any activity relating to organizing or distributing the documents, including through the Procurement Bulletin); or

v) Provides similar assistance, e.g., conducting research or providing any advice used in drafting, reviewing or preparing procurement documents.

C) A person who contracts with CDB to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement.

Exceptions. Any person or business who responds to an advertised request for information or other publically available opportunity to provide information related to the procurement need or to review drafts of all or part of proposed procurement documents shall not be disqualified by virtue of responding to the State's publically advertised request.

p) Pre-Bid Conference

A pre-bid conference may be conducted to enhance the potential vendors' understanding of the procurement requirements. The pre-bid conference shall be announced as part of the solicitation notice. The conference may be designated as "attendance mandatory" or "attendance optional". CDB may designate a conference as "attendance mandatory" only when direct observation of site conditions or the nature of specifications makes attendance necessary to be able to prepare an accurate bid.
The conference should be held long enough after the solicitation has been published to allow potential vendors to become familiar with it, but sufficiently before solicitation opening to allow consideration by vendors of conference results in preparing their responses.
Supporting documentation of the conference shall be supplied to all prospective vendors known to have received a solicitation by posting the information on the Bulletin. Nothing stated at the pre-bid conference shall change the solicitation unless a change is made by written modification to the solicitation.
Nothing stated at the pre-bid conference shall change specifications unless a change is made by written modification to the solicitation. Information conveyed in pre-bid conferences is not reportable under Section 50-39 of the Code, but any amendments resulting from the conference shall be supplied to all those prospective vendors through posting on the Bulletin. The A/E shall also issue a copy of the modified solicitation directly to all vendors who attended the conference and publish it in the location of the original solicitation and specifications.

q) Federally Funded Purchases. For purchases funded in whole or in part by United States Government funds, the solicitation will identify the federal statutes and regulations with which the vendor must comply.

44 Ill. Adm. Code 8.2010 Competitive Sealed Bidding

a) Application. Except as provided, unless an exception authorized by the Code and this Part exists, CDB contracts for construction projects shall be procured by competitive sealed bidding in accordance with Section 20-10 of the Code and this Section. Solicitations for bids shall be in conformance with the Code and this Part, and, in exigent circumstances for a specific procurement, with CPO Notices. Contracts shall be awarded in accordance with those authorities and with the provisions set forth in the SDC unless otherwise specified in the advertisement for bids published in the Procurement Bulletin, or as authorized by law or policies governing bid matters that are expressed in the SDC relating to the Invitations for Bid process.

b) Invitations for Bids

Use. An IFB is used to initiate a competitive sealed bid procurement.
Content. An IFB shall include, at a minimum, the following:

A) instructions and information to potential bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the location to which bids are to be delivered, the name of the bid officer, and the bid firm date;

B) the project description, instruction as to where the comprehensive purchase description (also known as "bid documents") may be obtained, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the project description;

C) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable, and State mandated certifications; and

D) A form or format that will specify or organize the manner of price submission and that the bidder shall submit along with all other necessary submissions, including disclosure forms.

Delivery Related Costs. Unless otherwise provided in the solicitation, the bid price includes transportation, transit insurance, delivery, installation and any other costs.

c) Amendments to Invitations for Bids

Form. Amendments to IFBs shall be issued as "addenda" and shall clearly identify and reference the portion of the IFB being amended.
Distribution. Amendments shall be posted to the Bulletin, and the A/E shall distribute them directly to plan rooms and all known plan holders.
Timeliness. Amendments shall be made available so as to allow prospective bidders a reasonable time to consider them in preparing their bids, but receipt will be not later than 3 days before the time of bid opening. If the time and date set for receipt of bids will not permit that preparation, the amendment shall extend the response time.

d) Licensing. In addition to other statutory requirements, all bidders shall be responsible for proper licensing with the appropriate State agency in the trades the bidder will perform on the particular project, such as, but not limited to, roofing, plumbing and asbestos abatement.

e) Obtaining Bid Documents. At the time of publishing an advertisement for bids, CDB shall make project plans, specifications and other bidding documents available to prospective bidders through the offices of the project Architect/Engineer (A/E) and other locations such as commercial "plan rooms", or electronic means, including the CDB or CPO websites or the Procurement Bulletin. Each advertisement shall identify the specific locations from which bid documents may be obtained. The A/E may charge a refundable deposit for loan of bid documents.

f) Construction Administration Fee. If CDB assesses a construction administration fee as authorized by Section 9.02(a) of the CDB Act, the amount or percentage of that fee shall be identified in the bid documents.

g) Reporting of Bid Document Errors or Inconsistencies. Bidders shall have an affirmative duty to examine bid documents and site conditions and to report any discovered errors or inconsistencies to the project A/E. Bidders awarded a contract will not be given change orders for extra payment or time extension for conditions that could reasonably have been discovered.

h) Agreement to Terms. By submitting a bid, the bidder agrees to all terms and conditions of the SDC and other contract documents referenced or incorporated in the IFB. Accordingly, submittal of conditions or qualifying statements on bids may be cause for rejection of the bid.

i) Bid Security. All bids shall include bid security in the form of a bid bond on CDB's form, certified check, cashier's check or bank draft in the amount of 10% of the base bid. If a bid bond is used, the surety issuing the bond must be acceptable to CDB.

j) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received at the location designated in the IFB prior to the time and date set for bid opening.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

k) Receipt, Opening and Recording of Bids

Receipt. Upon its receipt, each bid and modification shall be date and time-stamped but not opened and shall be stored in a secure manner (e.g., locked file cabinet, safe, locked room or other secure location) until the time and date set for bid opening. If a bid is opened for identification purposes or in error, the file shall state the reason for the breach. The bid officer and the person mistakenly opening the bid shall sign a statement explaining the reason for the mistake or error, including the name of anyone involved. The statement shall be included in the procurement file, and the bid shall be resealed. The bid shall be resealed until the time set for bid opening.
Opening and Recording. The bid officer shall open the bids and modifications publicly at the time, date and place designated in the IFB in the presence of a State witness. The bid officer shall not serve as witness. The bid officer shall announce and record on the bid tabulation sheet the project, the construction trade, the name of each bidder and that bidder's price, including modifications and alternate prices, and any acknowledgement of addenda. The Procurement Officer may require the reading of additional information if the nature of the project and bidding warrants.
CDB the CPO or SPO may request that a vendor clarify its bid or proposal as part of the evaluation process. A vendor shall not be allowed to change its bid or proposal or deviate from the specifications in response to a request for clarification.

l) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the IFB and only those requirements and criteria, except as permitted in the Code and this Part. After evaluating bids, CDB shall identify the lowest responsible and responsive bidder and submit to the Procurement Officer a written recommendation to award to that bidder unless an exception applies.
Responsibility and Ineligibility. Responsibility of prospective vendors is addressed in Section 8.2046 and Subpart V.
Material deficiencies shall result in rejection of a bid and include:

A) Failure of the contractor to be prequalified;

B) Omission of signatures resulting in the intent to be bound by the bid being not apparent;

C) Submission of a bid price that cannot be determined;

D) Failure to provide required bid security;

E) Failure to demonstrate responsibility.

Technical Deficiencies. Technical deficiencies in bids may be remedied by the bidder within 7 days after having been notified of the deficiency by CDB. The date of notification is deemed to be the business day of the sending of an email or fax, the date of delivery if recorded by the service making the delivery, or, in the case of first class mail, the third day after the date of the postmark. Technical deficiencies include but are not limited to the following:

A) Failure to use proper bid forms;

B) Submission of a bid bond that is not on CDB's form;

C) Failure to include a properly completed PC-2 (the Minority and Female Workforce Participation form of the Department of Human Rights); or

D) Failure to acknowledge an addendum that makes a material change to the bid documents.

Product Substitutions. Bids for construction projects shall be based on providing all products, subcontractors or suppliers specified. However, CDB specifications shall provide that a bidder may propose substitutions of a product, subcontractor or supplier upon review and approval by CDB and the project A/E. The product substitution process may be utilized regardless of whether the specification calls for a sole source and whether only brand names are listed. Substitutions shall not be accepted after award unless approved by a Procurement Officer. Determinations on the acceptance of substitutions shall be included in the procurement file.
CDB's written recommendation to award shall be in the form of an award package that includes, at least, the bid tabulations, the name and bid amount of the recommended awardee, results of the awardee's evaluation, MBE/FBE participation and identification of any bids rejected and the reasons for rejection.
No Disclosure of Information. Other than information that was recorded, read and made publicly available at the opening of the bids, CDB shall not disclose any information contained in any bid with any other bidder or person or entity, other than the CPO, SPO, PCM or CDB personnel, who requires access to information in furtherance of his or her job duties until after award of the proposed contract has been posted to the Illinois Procurement Bulletin.

m) Award to Other Than Low Responsible and Responsive Bidder

The SPO, but not a designee, may authorize the State to award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest. The determination shall include a description of the user agency's needs, a statement that the anticipated cost will be fair and reasonable, a listing of all responsible and responsive bidders, the name of the bidder selected, the total contract price and an explanation of the reasons for selecting this bidder instead of the low bidder.
The SPO must publish the determination in the Bulletin and file a copy with the Legislative Audit Commission and PPB. This information shall be made available by the CPO for inspection by the public within 30 days after the agency's decision to award the contract.

n) Publicizing Award

Bidders shall be notified of contract award. The notification shall be issued electronically to the successful bidder in the form of a letter or other clear communication. Notices of awards through the Invitation for Bids process shall be published in the Bulletin prior to the execution of a contract. Failure to provide this notice to all bidders shall result in extending the time for filing a bid protest up to 5 business days. The extension shall be a day for each day the notice is late, up to 5 days. If the contract is awarded to other than the lowest bidder, the notice shall include an explanation of the award. Notice of the award shall be posted on CDB's website the next business day. All bids and supporting documents shall be made available by CDB for public inspection and copying after award unless exempt from the disclosure requirement of the Illinois Freedom of Information Act ("FOIA") [5 ILCS 140].
Notice of award must include at least the following information:

A) date solicitation first offered;

B) due date for submission of offers;

C) location for submission of offers;

D) name of purchasing agency;

E) name of responsible SPO and CDB personnel on the purchasing staff;

F) brief description of supplies/services being purchased;

G) method of source selection;

H) the contract price and the name of the vendor selected for award;

I) the number of unsuccessful responding vendors;

J) for each vendor who submitted a response:

i) the vendor's name;

ii) the bid amount;

iii) the percentage of business enterprise utilization plan;

K) total number of veteran owned small businesses and service disabled veteran owned small businesses that submitted bids and the percentage of veteran utilization plan;

L) any other disclosure required by the Code.

44 Ill. Adm. Code 8.2020 Small Purchase Limits

a) Small Purchase Limits

As authorized by law and under the jurisdiction of the CPO-CDB, individual contracts for construction, construction-related services, construction-related professional services, and construction management supplies or services not exceeding the following thresholds (hereinafter, "small purchase limit") may be made without notice or competition or use of other method of procurement as follows:

A) Procurements for construction-related professional services with an estimated basic professional services fee of less than $25,000;

B) Procurements for construction management contracts of less than $25,000;

C) Procurements for construction and construction-related services of less than $100,000.

The CPO-CDB shall publish any change identified by the United States Department of Labor in the Consumer Price Index for All Urban Consumers for the period ending each December 31, and for each year thereafter on its website. That percentage change shall be used to recalculate the small purchase maximum for construction that shall be applicable for the fiscal year beginning the following July 1. The CPO-CDB shall publish on the Procurement Bulletin the current small purchase maximum.

b) Determination of Small Purchase Status

In determining whether a contract is under the small purchase limit, the stated value of the supplies or services, plus any optional supplies and services, and the value of any renewals, determined in good faith shall be utilized. When the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a 12 month period.
If, after signing the contract, the actual cost of completing the contract is determined to exceed the small purchase amount, and the SPO determines that a supplemental procurement is not economically feasible or practicable because of the immediacy of the agency's needs or other circumstances, the SPO must follow the procedures for sole source or emergency procurement, whichever is applicable, to complete the contract.
If there is a repetitive need for small procurements of the same type (which may be evidenced by a pattern of small purchases, as determined by CDB or the SPO), CDB shall consult with the SPO to consider whether issuing a competitive sealed bid or proposal for procurement of those needs is required or otherwise in the best interest of the State. Procurements shall not be artificially divided in order to constitute a small purchase.

c) The CPO shall establish policies and procedures to manage the use of the small purchase method of source selection.

The policies shall include, but not be limited to, an informal request for quote process through which CDB shall:

A) identify the scope of work;

B) provide the same scope of work, cost estimates, and time for response to all contacted businesses;

C) consider registered Illinois small businesses, Business Enterprise (female/minority/disabled), and Veteran-owned firms;

D) attempt to obtain at least 3 quotes from businesses who can provide the work. If 3 businesses cannot be identified, CDB shall document in the procurement file why it was unable to obtain 3 quotes; and

E) attempt to not select the same business, including branch offices, more than once in the same calendar year unless CDB can document in the procurement file why the repeated use of the business is justified.

CDB prequalification of contractors is required for small purchases of construction services involving any of the 5 subdivisions of work outlined in Section 30-30(a) of the Code.
Documentation of each small purchase shall be maintained in the procurement file and each small purchase will be reviewed and approved by the Chief Procurement Officer.

History

Source: Amended at 40 Ill. Reg. 14354, effective October 10, 2016

44 Ill. Adm. Code 8.2025 Sole Economically Feasible Source Procurement

a) Application. The provisions of this Part apply to procurement from a sole economically feasible source (referred to as "sole source") unless the estimated amount of the procurement is within the limit authorized in Section 8.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 8.2030 (Emergency Procurements), in which case those other procedures may be used.

b) Conditions for Use of Sole Source Procurement. Sole source procurement is permissible when a requirement is available from only a single supplier or when only one supplier or service provider is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one vendor authorized to provide that item. The following are examples of circumstances that could necessitate sole source procurement (but are not exhaustive):

compatibility of equipment, accessories, replacement parts or service is a paramount consideration;
items are needed for trial use or testing of that specific product or service;
non-competitive public utility services;
item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;
contract has expired, but the supplies or services have not been fully provided;
Federal or State grant requires contract with named vendor;
changes to existing contracts (see subsection (c)).

c) Changes

A change that is germane and reasonable in scope and cost in relation to the original contract that is necessary or desirable to the success of the project need not comply with these sole source procedures.

d) Sole Source Determination and Hearing

CDB may request that a particular procurement be made on a sole source basis. The request shall be in writing on a form prescribed by the Procurement Policy Board and shall describe in detail the basis for the sole source determination.
If the SPO approves, the SPO shall cause to be published in the Bulletin and provided to PPB the notice of intent required by Section 20-25(c) of the Code. In addition to meeting other requirements, the notice shall advise interested parties of the date, time and location of any hearing that may be held in response to a written request submitted by an interested party to challenge the justification for use of the sole source procurement method.
The hearing date shall be set for a date no fewer than 15 days after publication of the notice. Unless an interested party's request for hearing is received by the CPO no later than the close of business on the date prior to the scheduled hearing, the Procurement Officer shall cancel the hearing and cause notice of cancellation to be published in the Bulletin prior to the hearing date. If a hearing is requested, the procurement may proceed on a sole source basis only after the hearing is conducted and with the approval of the CPO.

e) Hearing Procedures. Any hearing required shall be conducted in accordance with Subpart T.

44 Ill. Adm. Code 8.2030 Emergency Procurements

a) Authority to Make Emergency Procurements. The provisions of this Section apply to every procurement over the small purchase limit set in Section 8.2020 made under emergency conditions. The CPO shall have the authority to make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods.

b) Statutory Emergency Conditions exist:

if there exists a threat to public health or public safety;
when immediate expenditure is needed for repairs to State property in order:

A) to protect against further loss or damage to State property;

B) to prevent or minimize serious disruption in critical State services that affect health, safety, or collection of substantial State revenues; or

C) to ensure the integrity of State records.

c) Scope of Emergency Conditions. CDB shall provide the CPO a detailed written description of the basis for the emergency and reasons for the selection of the particular contractor to be included in the contract file in accordance with Section 20-30(a) of the Code. Emergency procurement shall be limited to the supplies, services, construction or other items necessary to meet the emergency need (i.e., the temporary solution). Under certain situations, the temporary solution may also be the permanent solution when doing so is shown to be in the best interest of the State. In this event, the notice shall describe that circumstance.

d) Source Selection Methods

CDB will employ as much competition as is practicable under the emergency circumstances to address the emergency situation, as approved by the SPO.
When practicable, a minimum of three vendors approved by the SPO shall be evaluated for award of an emergency contract. Documentation of efforts made to obtain competition shall be made part of the procurement file.

e) Determination and Record of Emergency Procurement

Determination. The SPO shall make a written determination confirming or denying the basis for the emergency and the reasons for the selection of the particular vendor. These determinations shall be kept in the procurement file.
Emergency Contract Award. For purposes of an emergency contract, an emergency contract is awarded on the earlier of the date an agency communicates to a vendor to start work, date of publication in the Illinois Procurement Bulletin identifying the vendor of the required goods or services, or the date the contract is signed by both parties.
Vendor Authorization. Unless impractical, no work shall be performed by a vendor under the jurisdiction of the CPO without the prior written authorization of the SPO.
Record. A written explanation and affidavit of each emergency procurement (including extensions of emergency contracts beyond 90 days) shall be submitted to the CPO by CDB within 5 days after an emergency contract is awarded (see Section 8.2030(e)(2)). The CPO will submit the explanation and affidavit to the Auditor General and the PPB within 10 days after award and shall include the following information:

A) the vendor's name;

B) the amount and type of the contract (if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known);

C) a description of what the vendor will do or provide;

D) the conditions and circumstances requiring use of the emergency method of source selection, including the cost and advantages and disadvantages of reasonable alternatives to the emergency procurement;

E) the expected duration of the contract;

F) the expected or anticipated need for other contracts that might be necessary to completely address the emergency conditions;

G) an analysis of how a competitive selection may or will be structured to address a permanent solution to the condition prompting the emergency; and

H) such other information as may explain the emergency procurement or as may be requested by the SPO.

Notice of the Emergency Procurement. Notice of the emergency procurement shall be published in the Bulletin by the SPO as specified in Sections 15-25(c) and 20-30 of the Code no later than 3 business days after the contract is awarded and shall include a description of the procurement, identification of the contractor, the reasons for the emergency procurement, the names of the responsible CPO and SPO, and the total cost. When only an estimate of the total cost is known at the time of publication, the estimate shall be identified as an estimate and published. When the total cost is determined, it shall also be published in like manner before the 10th day of the next succeeding month.
CDB shall be responsible for preparing the filings required in Section 20-30 of the Code.

f) Duration and Replacement of Emergency Contract. By statute, the term of an emergency purchase shall be limited to the time reasonably needed for a competitive procurement, not to exceed 90 days. Therefore, unless the purchase or the temporary nature of the emergency conditions are likely to resolve the emergency or otherwise make unnecessary the emergency measures, CDB shall immediately act to initiate whatever competitive procurement is appropriate to provide the services on a longer term basis or, in the case of a temporary solution, is necessary to acquire the permanent solution.

g) Extension of Emergency Contract. An emergency contract may be extended beyond 90 days if the CPO determines additional time is necessary and the contract scope and duration are limited to the emergency.

If CDB believes an extension beyond 90 days is necessary, it shall direct an extension request to the SPO for approval. The request shall be in writing and include justification for the extension and a description of the efforts of CDB and, if appropriate, the using agency to address the emergency condition on a permanent basis.
If the SPO approves, the SPO shall submit the request to the CPO with a written approval and justification for that approval. Unless the CPO disapproves the request, the CPO shall hold a public hearing on the extension, notice of which shall be published in the Bulletin no later than 14 days prior to the hearing. Notice shall include at least a description of the need for the emergency extension, the contractor, and, if applicable, the date, time and location of the public hearing.
The public and any representative of the PPB may present testimony at the public hearing, which shall be conducted in accordance with Subpart T. Only after the hearing and the CDB providing written justification, may the CPO allow the emergency contract to be extended. The notice of hearing and all hearing documents, including the written justification, must be posted on the Bulletin as soon as possible but no later than 3 days after the hearing.

44 Ill. Adm. Code 8.2036 Other Methods of Source Selection

a) Single-Prime. In accordance with Section 30-30 of the Code and subject to prior approval of the Procurement Policy Board, CDB may, on certain projects, retain one contractor to provide all subdivisions of the work necessary to complete the construction contract. Use of this method requires prior written approval of the CPO. The CPO's review and approval shall be limited to compliance with the requirements of Section 30-30(i) through (vii) of the Procurement Code.

b) Design-Build. In accordance the Design-Build Procurement Act, CDB may use the design-build delivery method for certain projects, provided it first makes a written determination that it is in the best interest of the State to enter into a design-build contract. This written determination must include a description of particular advantages of the design-build method.

c) Construction-related professional services shall be procured in accordance with the QBS Act, Subpart M of this Part and, to the extent not inconsistent with QBS and Subpart M, the remainder of this Part and any related rules of the Board.

d) Construction management services shall be procured in accordance with Subpart N of this Part, and, to the extent not inconsistent with Subpart N, the remainder of this Part and any related rules of the Board.

e) Federal Requirements. If a project is funded with federal aid funds, grants or loans or is otherwise subject to federal requirements, the funded procurements shall be conducted in accordance with federal requirements that are necessary to receive or maintain those federal aid funds, grants or loans or to remain in compliance with federal requirements.

44 Ill. Adm. Code 8.2037 Tie Bids and Proposals

a) Tie bids or proposals are those from responsive and responsible vendors that are, in the case of bids, identical in price, and, in the case of proposals, identical in rank after evaluation.

b) Tie bids or proposals will be resolved as follows:

If the tied vendors include only one Illinois resident vendor, the Illinois resident vendor shall be given the award. "Illinois resident vendor" has the meaning ascribed in Section 8.4510 (Resident Vendor Preference).
In all other situations, the award shall be made by the toss of a coin, properly witnessed and recorded, unless CDB requests and documents, and the SPO determines that awarding to one of the vendors is in the State's best interest because, for example, that vendor:

A) is likely to be more reliable or responsive to the State's needs, based on past performance;

B) provides a better quality of the supply or service as demonstrated by performance evaluations on file prior to bidding, or such similar evidence;

C) provides quicker delivery; or

D) in the case of proposals, because of a desire to take advantage of the lower price.

c) Records. In addition to the record in the particular procurement file, a separate record shall be made of all procurements on which tie bids or offers are received, showing at least the following information:

The identification number of the solicitation;
A description of what was procured; and
A listing of all bidders or offerors and the prices submitted.

44 Ill. Adm. Code 8.2038 Modification or Withdrawal of Bids or Proposals

a) Modification or Withdrawal A bidder or offeror may withdraw or modify a bid or proposal if notice of the withdrawal or modification is received by the bid officer before the latest time specified for receipt of bids or proposals. Any modification or withdrawal, however, must be made in writing and conveyed directly to the bid officer prior to the scheduled bid or proposal opening. The SPO may allow all modifications or withdrawals by printed form conveyed by electronic mail or fax. Method of submittal of withdrawal and modification must be included in the bid documents including any specific fax numbers or e-mail addresses.

Withdrawal of bids or proposals after bid or proposal opening will not ordinarily be permitted. A thorough analysis of the request for withdrawal of bid or proposal, including a recommendation to approve or deny the request, must be provided to the SPO. In cases in which, in the judgment of the SPO, based on credible, clear and concise evidence, the bidder or offeror has made a bona fide error in the preparation of the bid or proposal and that error will result in a substantial loss to the bidder or offeror, a withdrawal may be made at the SPO's discretion.
Minor Informalities or irregularities. A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on quality, quantity, delivery or contractual conditions is negligible). The bid officer shall waive these informalities or irregularities allowing correction if to allow such correction is in the best interests of the State. A record of minor informalities and irregularities shall be maintained in the Procurement File and is subject to review by the SPO during the award process. Examples of minor informalities as to form include the failure to:

A) return the required number of signed copies required by the IFB;

B) acknowledge receipt of an amendment to the solicitation, but only if:

i) it is clear from the bid that the offeror received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on quantity, quality or delivery.

b) Documentation Required. When a bid or proposal is corrected or withdrawn, or correction or withdrawal is denied, a written determination shall be prepared by the bid officer and provided to the SPO showing that relief was granted or denied in accordance with this Part.

44 Ill. Adm. Code 8.2039 Mistakes

a) General. Corrections to bids, proposals or other procurement processes are allowed, but only to the extent not contrary to the best interest of the State or the fair treatment of the other bidders or offerors.

b) Mistakes Discovered Before Opening. A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting the error in writing, or in person at the opening location, before the time and date set for opening.

c) Confirmation of Mistake After Opening. When the SPO knows or has reason to know that a mistake has been made, the SPO may request the vendor to confirm the information. Situations in which confirmation should be requested include obvious or apparent errors on the face of the document or a price unreasonably lower than the others submitted. If the vendor alleges a mistake, the bid or proposal may be withdrawn if the conditions set forth in this Section, as applicable, are met.

Minor Informalities or Irregularities. A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery or contractual conditions is negligible). The bid officer shall waive these informalities or irregularities allowing correction if to allow the correction is in the best interest of the State. A record of minor informalities and irregularities shall be maintained in the procurement file and is subject to review by the SPO during the award process. Examples of minor informalities as to form include the failure to:

A) return the required number of signed copies required by the IFB or RFP;

B) acknowledge receipt of an amendment to the solicitation, but only if:

i) it is clear from the bid that the offeror received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on price, quantity, quality or delivery.

Mistakes in Which the Intended Correct Information Is Evident. If the mistake and the intended correct information are clearly evident on the face of the bid document, the information shall be corrected and the bid may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the solicitation document are typographical errors, errors in extending unit prices, transposition errors and arithmetical errors.
Mistakes in Which the Intended Correct Information Is Not Evident.

The bid or proposal may be withdrawn if:

A) a mistake is clearly evident on the face of the bid or proposal document but the intended correct bid or proposal is not similarly evident; or

B) there is clear and convincing evidence demonstrating a mistake was made.

d) Documentation Required. The reason for allowing correction or withdrawal of bids or proposals shall be made part of the procurement file and shall be available for public inspection.

44 Ill. Adm. Code 8.2040 Cancellation of Solicitations; Rejection of Bids or Proposals

a) Policy. Any solicitation may be canceled before or after opening when the SPO believes cancellation to be in the State's best interest. An SPO may request from CDB any information necessary to assist the SPO in reaching a determination of whether cancellation is in the State's best interest. Nothing shall compel the award of a contract.

b) Cancellation of Solicitation; Rejection of All Bids or Proposals

A solicitation may be canceled in whole or in part when the SPO determines in writing that the action is in the State's best interest for reasons including, but not limited to:

A) the State no longer requires the supplies or services;

B) the State no longer can reasonably expect to fund the procurement;

C) proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable;

D) ambiguous or otherwise inadequate specifications;

E) the solicitation did not provide for consideration of all factors of significance to the State;

F) prices potentially exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

G) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

H) there is reason to question whether the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

When a solicitation is canceled, notice of cancellation shall be posted to the Bulletin.
The notice of cancellation shall:

A) identify the solicitation;

B) briefly explain the reason for cancellation or rejection; and

C) when appropriate, explain that an opportunity will be given to compete on any re-solicitation or any future procurements of similar supplies or services.

c) Rejection of Individual Bids or Proposals

Individual bids or proposals may be rejected for reasons including, but not limited to:

A) the bid or proposal is not responsive (i.e., it does not conform in all material respects to the submission requirements for the solicitation);

B) the vendor that submitted the bid or proposal is not responsible as determined under Section 8.2046 (Responsibility and Eligibility);

D) the proposed price, including options, is clearly unreasonable.

Notice of Rejection. Bidders or offerors whose bids or proposals have been rejected shall be advised of the reasons for rejection.

d) Documentation. The reason for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

44 Ill. Adm. Code 8.2045 Vendor Prequalification and Responsibility

Prequalification constitutes a preliminary determination of responsibility requisite for a vendor to be eligible to bid or submit proposals. Prequalification is not a binding final determination of a vendor's responsibility. All entities required to be prequalified shall be prequalified in accordance with Subparts V, W and X. Responsibility shall be considered by the SPO prior to making an award or signing a contract in accordance with Section 8.2046.

44 Ill. Adm. Code 8.2046 Responsibility and Ineligibility

a) Application. Before making an award or signing a contract, the SPO must be satisfied the prospective vendor is responsible. CDB's recommendation to award a contract shall include a determination of responsibility. If there is doubt about responsibility, a vendor may be denied an award. If additional bonding or other security would adequately protect the State's interests, then that vendor may receive an award or contract upon receipt of the bond or other security.

b) Standards of Responsibility. Factors to be considered in determining whether the standard of responsibility has been met include, but are not limited to, whether a prospective vendor:

has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or the ability to obtain and manage this expertise, necessary to indicate its capability to meet all contractual requirements. CDB shall not recommend a determination of responsibility for any vendor who has the appearance of being a broker, rather than a conventional business. In determining whether a vendor is a broker or a vendor with inadequate resources, CDB may consider one or more of the following:

A) whether the vendor maintains and works from a separate conventional office which is not a residence or offices for other businesses;

B) whether the vendor maintains a full-time office with professional and/or construction staff consisting of clerical, managerial, and supervisory personnel;

C) whether key persons with the vendor have an educational and work experience background that makes the key persons sufficiently expert and knowledgeable to carry out CDB construction projects;

D) whether the vendor owns equipment, tools, machinery, materials or supplies used on construction projects;

E) whether the contractor has financial resources related to or generated by the construction business;

F) whether the vendor has historically subcontracted for a percentage of the work in construction contracts exceeding the requirements of CDB contracts;

G) whether key persons with the vendor are engaged in non-construction businesses;

is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments;
has a satisfactory record of performance. Vendors who are or have been materially-deficient in current or recent contract performance in dealing with the State or other customers may be deemed "not responsible" unless the deficiency is shown to have been beyond the reasonable control of the vendor;
has a satisfactory record of integrity and business ethics. Vendors who are under investigation or indictment for criminal or civil actions that bear on the particular procurement or that would make contracting with that vendor undesirable may be declared not responsible for the particular procurement;
is qualified legally and authorized to contract with the State, which means, among other things, the vendor holds and is in good standing with respect to all licenses, certifications, financial disclosures and conflicts of interest or registrations necessary to provide the subject services in Illinois;
has supplied all necessary information in connection with any inquiry concerning responsibility;
has a current public contracts number from the Illinois Department of Human Rights pursuant to 44 Ill. Adm. Code 250.210, if required. Proof of application prior to opening of bids or proposals will be sufficient for an initial determination;
does not have any financial or other conflicts of interest under Sections 50-13 and 50-35 of the Code, or any other provisions of Article 50 of the Code;
complies with all applicable laws concerning the vendor's entitlement to conduct business in Illinois;
complies with all applicable provisions of the Prevailing Wage Act;
complies with Subchapter VI ("Equal Employment Opportunities") of 42 USC 2000e et seq. and with Federal Executive Order No. 11246, as amended by Executive Order No. 11375;
has a valid Federal Employer Identification Number or, if an individual, a valid Social Security Number;
has a valid certificate of insurance showing the following coverages as applicable: general liability, professional liability, product liability, workers' compensation, completed operations, hazardous occupation and automobile; and
participates, including its subcontractors, in applicable apprenticeship and training programs approved by and registered with the United States Department of Labor's Bureau of Apprenticeship and Training.

c) Information Pertaining to Responsibility. Information pertaining to responsibility shall be obtained from CDB prequalification files, bid documents, proposals and State vendor registration systems. The prospective vendor may be required to supply additional information, if requested by CDB, the CPO or SPO, concerning the responsibility of the vendor. The State may supplement this information from other sources and may require additional documentation at any time. If the vendor fails to supply the requested information, the determination of responsibility will be based upon any available information, the prospective vendor may be found not responsible.

d) Duty Concerning Responsibility. Before awarding a contract, the CPO or SPO must be satisfied that the prospective vendor is responsible. Responsibility can be proven at any point from the time of bid until time of award.

e) Written Determination of Non-Responsibility Required. If a vendor who otherwise would have been awarded a contract is found to be not responsible, a written determination of non-responsibility setting forth the basis of the finding shall be prepared by CDB for approval by the CPO or SPO. A copy of the determination shall be sent promptly to the non-responsible vendor. The final determination shall be made part of the procurement file.

f) Affiliated Companies. Vendors that are newly formed business concerns having substantially the same owners, officers, directors or beneficiaries as a previously existing, non-responsible vendor may be declared non-responsible solely on that basis unless the new organization can demonstrate it was not set up for the purpose of avoiding an earlier declaration of non-responsibility.

44 Ill. Adm. Code 8.2047 Security Requirements

a) Vendors shall furnish security as specified in the solicitation or contract. The cost of providing security will be borne by the vendor unless otherwise stated in the solicitation.

b) Security, unless otherwise specified, may be in the form of cashier's check, certified check, money order, or irrevocable letter of credit or bond. Any bond must be issued by a surety company authorized to do business in the State of Illinois and meeting the requirements set forth in the Standard Documents for Construction.

c) Unless the amount is set by law, CDB will determine the amount, in dollars or percentage of contract price, that will adequately protect the State's interests. That amount will vary depending on the type of procurement and the risks and potential losses associated with delay or failure to complete the project, and for other such reasons.

e) Bid Bond

The bid bond will be used to ensure the bidder or offeror meets all obligations imposed under the solicitation, including the obligation to keep the price or bid vendor for as long a period as specified in the solicitation to enter into a contract and the obligation to file a performance security. If required, when the contract is awarded, CDB may retain the bid security as damages if the bidder fails to meet its obligations.
The bid bond will be returned to the vendor as soon as is practicable after the bid or proposal opening. The three lowest qualified vendors' bond will be returned as soon as possible after the contract is awarded or, if performance bond is required, as soon as the successful vendor has filed acceptable performance bond. Bond will be returned to the unsuccessful vendors upon expiration of the bid/proposal vendor time or execution of the contract, whichever is earlier.

44 Ill. Adm. Code 8.2050 Specifications and Samples

a) Responsibilities Regarding Specifications. Subject to the SPO's approval, the CDB shall have necessary specifications drafted.

b) Development of Specifications

All procurements shall be based on specifications developed in accordance with CDB's Design and Construction Manual that accurately reflect the State's needs. Specifications shall clearly and precisely describe the salient technical or performance requirements and shall be written in such a manner as to describe the requirements to be met, without being unduly restrictive or having the effect of exclusively requiring a particular brand name, a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.
Any specifications or standards adopted by business, industry, not-for-profit organization or governmental unit may be incorporated by reference. Specifications for a construction project shall include reference to the minimum Green Building Act requirements for the project.
A specification may provide alternate descriptions when two or more design, functional or performance criteria will satisfactorily meet the State's requirements.
Article 45 of the Illinois Procurement Code shall be considered and applied when required or appropriate.

c) Brand Name Specification. Bids for construction projects shall be based on providing all products, subcontractors or suppliers specified in the specifications. When a brand name specification is used, a minimum of three brand names must be specified for each product. Brand name product specifications shall allow that a bidder may propose additional products prior to bid opening. Bidders may propose substitutions of a product, upon review and approval by CDB and the project A/E. The product substitution process may be utilized regardless of whether only brand names are listed. Substitutions shall be accepted before award and are subject to the review of the SPO. Determinations on the acceptance of substitutions shall be included in the recommendation to award file.

Brand name specifications may be used in a construction solicitation when:

A) no specification for a common or general use specification or qualified products list is available;

B) time does not permit the preparation of another form of specification;

C) the nature of the product or the nature of the State's requirement makes use of a brand name specification suitable for the procurement; or

D) use of a brand name specification is in the State's best interest.

Brand name specifications shall designate a minimum of three brands and shall further state that substitutions may be allowed.
Unless CDB determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name specifications shall include a description of the particular design, functional or performance characteristics that are required.

d) Limited Source Product Specification. CDB shall specify a minimum of three brand name products and shall identify sources to achieve whatever degree of competition is practicable. If less than three brand names are specified, CDB will review and approve all such specifications, which are subject to review by the Procurement Officer upon request. The procedure for review by CDB shall be contained in CDB's Design and Construction Manual.

e) Specifications Prepared by Persons Other Than State Personnel. Specifications may be prepared by persons other than State personnel, including, but not limited to, consultants, architects, engineers, designers or other drafters of specifications for public contracts. CDB shall review and approve such specifications. Vendors preparing specifications must affirm that no conflict of interest exists at time of submittal and review of the specifications by CDB and that it has accepted no gift or consideration intended to influence its judgment on the project. Vendors may be requested to verify conflict of interest status at any time throughout a project. No person or business shall submit specifications to a State agency unless requested to do so by an employee of the State [30 ILCS 500/50-10.5(e)].

The SPO retains the authority for final approval of the specifications. Contracts with vendors for the preparation of specifications shall require the specification writer to adhere to the Design and Construction Manual, the Code and this Part.
The person or business that writes specifications for a particular procurement need shall not submit a bid or proposal, receive a contract to meet that procurement need, or have any financial interest in the product or service specified or the source from which it is procured.

f) Prohibited Bidder and Contractors

No person or business shall bid or enter into a contract if the person or business:

A) Assisted an employee of the State of Illinois, who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract, by reviewing, drafting, directing, or preparing any IFB, an RFP or an RFI;

B) Provided similar assistance, except as part of a publicly issued opportunity to review drafts of all or part of these documents. Similar assistance includes, but is not limited to, providing supplementary support or aid, information that serves as a basis for specifications, or the establishment or development of evaluation criteria.

This subsection (f) does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

A) Initiates a communication with an employee to provide general information about products, services or industry best practice and, if applicable, that communication is documented in accordance with Section 50-39 of the Act; or

B) Responds to a communication initiated by an employee of CDB for the purposes of providing information to evaluate new products, trends, services or technologies. [30 ILCS 500/50-10.5(e)]

For purposes of this subsection (f), "business" includes all individuals with whom a business is affiliated, including, but not limited to, any officer, agent, employee, consultant, independent contractor, director, partner, manager, or shareholder of a business. [30 ILCS 500/50-10.5(e)]
A vendor who develops technology, goods or services that represent industry trends and innovation and is not designed to meet the State's needs is not prohibited from bidding or offering.

g) Pre-Solicitation Request for Information. When CDB does not have sufficient information about available supplies or services to issue a solicitation, CDB may issue a pre-solicitation request for information inviting vendors to submit non-price information about the availability of specified types of supplies and services. Vendors may be provided an opportunity to comment on the RFI itself and make non-proprietary suggestions as to the scope and information being requested that would facilitate the best responses from the vendor community. Public notice of the RFI shall be published in the Bulletin by the SPO at least 14 days before the date set for the receipt of information. The submission of information by a vendor in response to a pre-solicitation request for information is not a prerequisite for that vendor to respond to a subsequent solicitation for the types of supplies and services for which information was solicited, and the issuance of an RFI does not commit the State agency to make any procurement of supplies or services of any kind. Confidential information will not be accepted from a vendor in response to a pre-solicitation request for information. All information received through a pre-solicitation request for information will be available for public review.

44 Ill. Adm. Code 8.2055 Types of Contracts

a) Scope. This Section contains descriptions of types of contracts and limitations as to when they may be utilized by the State in its procurements. Types of contracts not mentioned in this Section may also be utilized.

b) Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting. The cost-plus-a-percentage-of-cost contract is prohibited by Section 20-55 of the Code. This type of contracting may not be used alone or in conjunction with an authorized type of contract. A cost-plus-percentage-of-cost contract is one in which the vendor selects the supply or service on which the vendor's percentage is applied.

A percentage mark-up from the price of a supply or service selected by the State or another vendor under contract to the State is not a cost-plus-a-percentage-of-cost contract.
The application of such things as overhead and profit to the price of a subcontract is not a cost-plus-a-percentage-of-cost contract.

c) Types of Fixed-Price Contracts

Firm Fixed-Price Contract. A firm fixed-priced contract provides a price that is not subject to adjustment because of variations in the vendor's cost of performing the work specified in the contract.
Fixed-Price Contract with Price Adjustment

i) changes in the vendor's labor agreement rates as applied to an industry or area (such as are frequently found in contracts for the purchase of coal);

ii) changes due to rapid and substantial price fluctuations that can be related to an accepted index (such as contracts for gasoline, heating oils and dental gold alloy); and

d) Cost-Reimbursement Contracts

Determination Prior to Use

B) Any reimbursement of travel expenses authorized in the solicitation and the terms of the contract may not exceed the applicable travel control board regulations.

Cost-Reimbursement Contracts. A cost-reimbursement contract provides that the vendor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee.
Cost-Plus-Fixed-Fee Contract. This cost-reimbursement type contract provides for payment to the vendor of an agreed fixed fee in addition to reimbursement of allowable incurred costs. The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for the work. Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed. The fee is subject to adjustment only if the contract is modified to provide for an increase or decrease in the scope of work specified in the contract.
Cost Incentive Contracts

A) General. A cost-incentive type of contract provides for the reimbursement to the vendor of allowable costs incurred up to the ceiling amount and establishes a formula whereby the vendor is rewarded for performing at less than the maximum agreed upon cost (that is, the parties' agreed best estimate of the cost of performing the contract will vary inversely with the maximum costs of performance and consequently is dependent on how effectively the vendor controls cost in the performance of the contract).

e) Performance Incentive Contracts. In a performance incentive contract, the parties establish at the outset a pricing basis for the contract, performance goals, and a formula that varies the profit or the fee if the specified performance goals are exceeded or not met. For example, early completion may entitle the vendor to a bonus, while late completion may entitle the State to a price decrease.

f) Time and Materials Contracts; Labor Hour Contracts. Time and materials contracts provide an agreed basis for payment for materials supplied and labor performed. Labor hour contracts provide only for the payment of labor performed. The contracts shall contain a stated ceiling or an estimate that shall not be exceeded without prior SPO approval.

g) Definite Quantity and Indefinite Quantity Contracts

Definite Quantity. A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services at specified times or when ordered, with deliveries or performance scheduled at designated locations upon order.
Indefinite Quantity. An indefinite quantity contract is a contract for an indefinite amount of supplies or services, within stated limits, to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type. Generally, an estimated quantity is based on historical usage or the best information available as to quantity as stated in the solicitation. The contract may provide a minimum quantity the State is obligated to order and shall also provide for a maximum quantity provision that limits the State's ability to order. If the contract identifies an estimated quantity, the State agency may order in the aggregate up to 20% more than the estimate without approval of the CPO or SPO. For amounts that exceed 20% of the maximum quantity, a new procurement for the additional quantity is required.

h) Leases. A lease is a contract for the use of supplies or real property under which title will not pass to the State at any time, except pursuant to an option to purchase.

i) Option Provisions. A solicitation may contain options for renewal, extension or purchase, and, if it does, the solicitation shall also include the requirements for exercising a given option, establish the term, and either establish the price or include the formula for establishing the price. Contracts based on a solicitation may include only those options included in the solicitation, and other options shall be included as required terms in the contract. Exercise of options shall be performed in accordance with the contract, the Code and other provisions of this Part. Failure to include the options in the contract shall render the option provisions void.

j) State Produced Supplies and Services. Notwithstanding any provision in any contract, supplies or services available in-house or from State programs, such as the Illinois Correctional Industries, may be ordered without violating any contract.

k) Energy Conservation. State agency procurements of energy conservation measures, including guaranteed energy savings contracts, shall be made in accordance with the Code and this Part, except as otherwise authorized by the Code.

44 Ill. Adm. Code 8.2060 Duration of Contracts - General

a) General. The duration of a construction or construction-related services contract, including potential renewals, may not exceed 10 years. unless a longer period is permitted by the Code

b) Subject to Appropriation. Each contract is contingent upon and subject to the availability of funds. The State, at its sole option, may terminate or suspend a contract, in whole or in part, without penalty or further payment being required, if the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay that obligation or if funds needed are insufficient for any reason. Each contract payable in whole or in part by any funds appropriated by the Illinois General Assembly shall recite that the contract is subject to termination and cancellation for lack of, or insufficiency in, funding. A vendor will be notified in writing by CDB of a failure to receive or a reduction or decrease in any appropriation affecting the contract. This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

c) Conditions for Use of Multi-Year Contracts. A multi-year contract may be used when the period of performance exceeds a single year and when a multi-year contract will serve the best interest of the State by encouraging effective competition or otherwise promoting economies in State procurement.

d) Multi-Year Contract Procedure. The solicitation shall state:

the proposed term;
the amount of supplies or services required for the proposed contract period; and
how award will be determined.

e) Renewals

The initial term of a contract plus available renewals may not exceed 10 years. When the original contract specifically called for an initial term plus renewals, the renewals may be exercised without further procurement activity, except for the publication of the renewal in the Bulletin as required by Section 15-25 of the Code and Section 8.1525 of this Part and subject to review by the PPB under Section 5-30 of the Code. The renewal terms and conditions shall not change except as provided in the contract (such as price escalations tied to an index). Renewal options may be exercised by the State or by mutual agreement, but shall not be exercised solely at the option of the vendor. Any renewal that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to competitive procurement procedures established by the Code and this Part.
When the original contract was silent as to renewals, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part. The renewal shall start a new term not to exceed 10 years, except the term of a sole source contract renewal shall include previous sole source contracts and shall, in total, not exceed 10 years.
When a renewal will result in the total term, counting the initial term and any previous renewals, exceeding 10 years, the State agency's need must be procured using one of the methods of source selection authorized by the Code and this Part.
Renewals must be fully executed on or before expiration of the current contract term. If the renewal is not exercised prior to expiration of the current contract term, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part.
Filing of Proposed Renewals and Extensions Exceeding $249,999. Prior to executing a renewal or extension with a cost estimated to exceed $249,999, the proposed renewal or extension must be submitted to PPB. PPB shall have up to 30 days to review and comment on the proposal. The Procurement Policy Board may object to the proposed extension or renewal within 30 calendar days and require a hearing before the PPB prior to entering into the extension or renewal. If the PPB does not object within 30 calendar days or takes affirmative action to recommend the extension or renewal, the CPO may enter into the extension or renewal of a contract. The SPO assigned the agency may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.

44 Ill. Adm. Code 8.2065 Cancellation of Contracts

a) In any of the following cases, the SPO shall have the right to terminate or rescind any contract entered into under this Part without penalty:

The successful vendor inexcusably fails to furnish applicable insurance and bonds within the time specified.
The vendor inexcusably fails to make delivery at the place or within the time specified in the contract or as ordered by the purchasing agency.
Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies or services promptly.
The vendor is guilty of misrepresentation in connection with another contract for the sale of supplies or services to the State such that the vendor cannot reasonably be depended upon to fulfill obligations as a responsible vendor under other contracts with the State.
The vendor should be adjudged bankrupt; enter into receivership or make a general assignment for the benefit of creditors due to insolvency; disregard laws, rules, or instructions of the SPO; or act in violation of any provision of the contract; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.
Any other material breach of contract or other unlawful act by the vendor.
The contract was obtained by fraud, collusion, conspiracy or other unlawful means.

b) Damages. The damages for which the State may be compensated as provided in this Section or by a suit on the vendor's performance bond or by other legal remedy shall include, but are not limited to, the following:

the additional cost of supplies or services bought elsewhere;
cost of repeating the procurement procedure;
any expenses incurred because of delay in receipt of supplies or services; and
any other damages caused by the vendor's breach of contract or unlawful act.

c) Withholding Money to Compensate State for Damages. If a contract is terminated or rescinded under this Section, the State agency may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the State agency for any damage resulting from termination or rescission.

44 Ill. Adm. Code 8.2075 Protests

a) Any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-bid/proposal meeting or any decision to reject a late bid or proposal.

b) Any person who has submitted a bid or proposal may protest a decision to reject the party's bid or proposal or to award to another vendor.

c) The following procedures will govern the resolution of protests received by the CPO that are covered under this Subpart:

Protest Review Officer. The CPO may appoint one or more Protest Review Officers, who will not be CDB employees, to consider procurement related protests and make a recommendation to the CPO for resolution of a protest. The CPO may adopt the recommendations or take other action.
Subject of the Protest. A protest may be filed during any phase of the solicitation and award process for a particular contract.

A) The subject of the protest shall concern violation of the Illinois Procurement Code or other law, any associated rules, or the terms of the solicitation itself, including the fairness of the evaluation or award process.

B) Protest procedures of this Section do not apply to issues of prequalification, suspension or debarment.

C) Information relevant to a protest shall be made available to the protesting party for use in its protest. The PRO or CPO shall determine relevancy of the information.

Filing a Protest. All protests shall be in writing and filed with the Chief Procurement Officer within 14 days after the protester knows or should have known of the facts giving rise to the protest.

A) Any solicitation or addendum posted to the Bulletin or otherwise issued establishes the “known or should have known” date for the subject matter of the solicitation or addendum. A protest is considered filed when physically received by the Protest Review or CPO office. Protests filed after the 14 day period will not be considered.

B) The protest shall be contained in an envelope clearly labeled "Protest". The written protest shall include, at a minimum, the following requirements:

i) The name, address, e-mail if available, telephone and facsimile numbers of the protester.

ii) The identification of the procurement or solicitation that is the subject of the protest.

iii) All information establishing that the protester is an interested party.

iv) A detailed statement of the factual and legal grounds of the protest, including all relevant documents and exhibits that establish the basis for the protest.

v) All information establishing the timeliness of the protest.

vi) The signature of the protester.

vii) Specific relief sought.

Stay of Award during a Protest. When a protest has been filed and before an award has been made, the SPO will make no award of the contract until the protest has been resolved, unless the award of the contract without delay is necessary to protect the interests of the State.
Receipt of Protests. All protests received by the CPO office will be distributed to CDB as soon as practical.
Requested Information. The protesting party must supply any additional information requested by the Protest Review Officer within the time periods set in the request. If the protesting party fails to comply with the request, the CPO shall consider the protest on the basis of available information or may deny the protest.
At the discretion of the CPO, a hearing may be scheduled in accordance with Subpart T.
Decision. A decision on a protest will be made as expeditiously as possible after receiving all relevant information.

A) The protest will be sustained only if it is determined by the CPO that the protest conclusively demonstrates, by the preponderance of the relevant information submitted, a violation of the Code or other law, any associated rules or policies, or the solicitation itself, including the evaluation or award process.

B) If the protest is sustained, the remedies available are limited to cancellation or revision of the solicitation, advertisement of the solicitation or award to the protesting party if the protesting party was originally denied award.

C) The decision of the CPO is final and conclusive unless clearly erroneous, arbitrary, capricious or contrary to law. (See Section 20-75 of the Code.)

Effect of Judicial Proceedings. If an action concerning the protest has commenced in a court or administrative body, the CPO may defer resolution of the protest pending the judicial or administrative determination.

44 Ill. Adm. Code 8.2076 Disputes and Contract Controversies

a) In the event of a contract dispute or controversies, CDB and the vendor will exercise good faith efforts to resolve the matter fairly, amicably and in a timely manner. CDB shall commence an informal conference to investigate the merits of a contract dispute or controversy. CDB shall determine whether the dispute lacks merit, in consultation with the CPO, and that mediation will not be fruitful. If CDB, after consultation with the CPO, determines that mediation will not be fruitful, CDB will inform the other party or parties in writing of this determination, and the other parties may bring legal action without further pursuit of ADR. Otherwise, if the dispute is not settled within 90 days after the initial informal conference, a mediator will be appointed, unless the parties and the CPO agree to continue the informal discussions.

b) When efforts to resolve disputes and controversies that may result in an amendment to the contract in the form of a change order, modification or settlement are not successful, the parties to the dispute shall utilize alternative dispute resolution (ADR) methods required by the contract or bid documents. At the discretion of CDB, and under the authority of the CPO, an independent neutral party can be identified at the onset of a project to facilitate ADR requests. All related or associated disputes can be combined into a single Alternative Dispute Resolution (ADR) process. At a minimum, ADR shall be a condition precedent to the filing of any court action valued in excess of $25,000. The contents of communications between the CDB staff and CPO staff regarding disputes will not be divulged to a third party except by mutual agreement of CDB and the CPO or in accordance with the order of a court of competent jurisdiction. Once the parties have agreed on a mediator, CPO staff will not discuss pending disputes with the vendor or the vendor's attorney without CDB legal staff present. When ADR is utilized, the Contractor, CDB and the CPO agree to have in attendance a person with actual authority to resolve the dispute. When it is apparent that approval of CDB's Board is required, CDB personnel shall notify all concerned at the earliest possible time when it is apparent that Board approval will be required for ultimate resolution.

Disputes less than $25,000 shall utilize an expedited process of ADR to attempt to conclude the dispute and that may result in an amendment to the contract in the form of a change order, modification or settlement in 60 days or less, when practical.
Disputes greater than $25,000 require the parties to use the best efforts to expeditiously resolve the matter.
Disputes based on claims that include requests for additional compensation for delays in project completion will commence within 90 days after substantial completion of a project.
This Section shall not apply to mechanics lien actions, unless the parties to the lien consent, nor to contract terminations, CDB's right to carry out the work, and non-project matters such as suspension of prequalification. CDB shall immediately notify the CPO of any dispute that may result in an amendment to the contract in the form of a change order, modification or settlement. The CPO's approval shall be required to resolve a dispute resulting in payment to a party to the dispute, other than the State of Illinois, or any other procurement action under a contract with CDB for a period of 10 months after substantial completion of a project. During the 10 month period, CDB shall provide status updates on open issues, including requests for Alternative Dispute Resolution, to the CPO and contractor at no more than 90 day intervals. Failure to provide status updates shall increase the CPO approval period for each day of delay.
"Dispute" means any contested claim or matter growing out of the project or CDB's project contracts regarding payment or time for performance, but not including personal injury cases (including worker injuries), vehicle accidents, contractor-subcontractor matters in the nature of lien actions, or employment matters.

c) Effect of Judicial Proceedings. This Section shall not apply in cases in which CDB requests and receives representation from the Illinois Attorney General.

44 Ill. Adm. Code 8.2080 Public Procurement File

a) A procurement file shall be maintained for all contracts, regardless of the method of procurement. The procurement file shall contain the basis on which the award is made, all submitted bids and proposals, all evaluation materials, score sheets and all other documentation related to or prepared in conjunction with evaluation, negotiation and the award process. The procurement file shall contain a written determination, signed by the CPO or SPO, setting forth the reasoning for the contract award decision. The public procurement file shall not include trade secrets or other competitively sensitive, confidential, or proprietary information. The procurement file shall be open to public inspection within 7 days following award of contract. [30 ILCS 500/20-155(b)]

b) The procurement file shall be maintained by CDB or under the jurisdiction of the CPO.

c) Documentation of Procurement Actions. CDB, under the direction of the SPO, shall maintain an ongoing procurement file or associated contract file of all substantive documents and records of communications that pertain to the procurement and any resulting contract from the time of initiation of the procurement through the entire lifespan of the procurement. Unless otherwise indicated in this Section, all documents shall be included in the file within 3 days after finalization of the document. When applicable, this shall include, but is not limited to:

All determination memos showing approvals to proceed at all stages;
Procurement Bulletin Postings;
Solicitation document (e.g., IFB) and all amendments, clarifications and Best & Final Offer requests;
Vendors' responses, including clarifications and responses to Best & Final Offer requests;
Evaluation material (e.g., scoring guidelines and forms; completed score sheets for individual evaluators, including notes; evaluation committee's combined score sheets; evaluation committee's recommendation; and management's decision);
Protest and resolution;
Contract;
Change order, amendments, renewal or extension;
All communications and determinations made by PPB;
Contractor Performance reviews;
If a project labor agreement (PLA) is applicable to a project, a written determination of the benefits of the PLA pursuant to the Project Labor Agreements Act;
Any other documents, at the direction of the CPO;
All information from subsections (c)(1) through (c)(7), less information exempt from disclosure under the Freedom of Information Act [5 ILCS 140] or other law (for example the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] that exempts contractor performance reviews), shall be prepared and available for inspection and copying, within 7 days after the award is posted to the Bulletin. All post-award procurement documents shall be added to the procurement file within 3 days after finalization.

d) In accordance with the Illinois Procurement Code and this Part, relevant documents shall be made available on request prior to inclusion in the procurement files for the purpose of evaluation and/or filing a protest, except those documents that are exempted by law from disclosure.

44 Ill. Adm. Code 8.2084 Record Retention

a) Retention of Bulletin Information. Information published in the Bulletin shall be retained for a period of 3 years. Posted information can be placed in an archive located on the Bulletin and publicly available after 90 days.

b) Books and records that relate to a CDB procurement and contract, including subcontracts, and that support amounts charged shall be maintained:

by a vendor, for 3 years from the date of final payment under the prime contract; and for such longer period of time as is necessary to complete ongoing or announced audits or to comply with federal requirements.
by CDB according to the approved Record Retention plan or from the date of final payment under the prime contract; and for such longer period of time as is necessary to complete ongoing or announced audits, whichever is longer.

44 Ill. Adm. Code 8.2086 Filing with the Comptroller

a) Filing with Comptroller

Whenever a grant, defined pursuant to accounting standards established by the State Comptroller, or a contract liability, except for contracts paid for from personal services or contracts between the State and its employees to defer compensation in accordance with Article 24 of the Illinois Pension Code, exceeding $20,000 is incurred by any State agency, a copy of the contract, purchase order, grant or lease shall be filed with the Comptroller within 30 days thereafter. That filing shall, to the extent required by Section 20-80 of the Code, be done electronically in accordance with requirements of the State Comptroller. For each State contract for goods, supplies, or services awarded on or after July 1, 2010, the contracting agency shall provide the applicable rate and unit of measurement of the goods, supplies, or services on the contract obligation document as required by the Comptroller. Any cancellation or modification to any such contract liability shall be filed with the Comptroller within 30 days after its execution. [30 ILCS 500/20-80(b)]

b) Late Filing Affidavits

When a contract, purchase order, grant or lease required to be filed by this Section has not been filed within 30 days after execution, the Comptroller shall refuse to issue a warrant for payment thereunder until the agency files with the Comptroller the contract, purchase order, grant or lease and an affidavit, signed by the chief executive offer of the agency or his or her designee, setting forth an explanation of why the contract liability was not filed within 30 days after the execution. A copy of this affidavit shall be filed with the Auditor General and the CPO. [30 ILCS 500/20-80(c)]

c) Timely Execution of Contracts

No voucher shall be submitted to the Comptroller for a warrant to be drawn for the payment of money from the State Treasury or from other funds held by the State Treasurer on account of any contract unless the contract is reduced to writing before the services are performed and filed with the Comptroller. Vendors shall not be paid for any goods that were received or services that were rendered before the contract was reduced to writing and signed by all necessary parties. These prohibitions do not apply to an emergency purchase if notice of the emergency purchase is filed with the PPB and published in the Bulletin as required by the Code and this Part. [30 ILCS 500/20-80(d)]
The Comptroller and Treasurer may waive the requirement of this subsection (c) upon request of the CPO if the CPO submits to them a written statement setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services performed. The CPO will submit a waiver request only upon a request of the CDB that is supported by written justification that will fully apprise the CPO as well as the Comptroller and Treasurer of the circumstances and reasons the contract could not be reduced to writing in a timely manner. If the CPO agrees that the contract could not have been timely reduced to writing, the CPO will request the waiver from the Comptroller and Treasurer.

44 Ill. Adm. Code 8.2560 Prevailing Wage

a) Vendors awarded contracts or subcontracts on public works projects shall comply with the requirements of the Prevailing Wage Act.

b) Prevailing wages, benefits and conditions will be determined by the Illinois Department of Labor.

c) This Section does not apply to services furnished under contracts for QBS, unless categories of work within that contract are identified as being covered by the prevailing wage rate established by the Illinois DOL; to professional or artistic services; to vocational programs of training for persons with physical or mental disabilities; or to qualified not-for-profit agencies for persons with severe disabilities.

44 Ill. Adm. Code 8.3000 Notification of Procurement

As soon as practicable, but no later than 7 days after CDB has decided to move forward with a procurement, notice of a need for procurement will be provided to the CPO.

44 Ill. Adm. Code 8.3005 Construction and Construction Related Professional Services

Construction Contracts. Unless an exception authorized by the Code applies, CDB contracts for construction shall be procured by competitive sealed bidding in accordance with Section 8.2010 of this Part and this Section. Solicitations for bids shall be in conformance with the Illinois Procurement Code, the rules of the CPO, and in exigent circumstances, CPO Notices. Contracts shall be awarded in accordance with those authorities and with the provisions set forth in the SDC used by CDB unless otherwise specified in the advertisement for bids published in the Procurement Bulletin, or as authorized by law.

44 Ill. Adm. Code 8.3015 Method of Source Selection

a) Architect and Engineer Contracts. Solicitation for procurement of services of architects/engineers (A/Es), or related professionals, shall be in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act, the Illinois Procurement Code and this Part.

b) Construction Management Services. Procurement of a construction manager for project services, which may include, but are not limited to, scheduling, contractor coordination, and administration of pay requests, but not including design services, shall be made in accordance with Article 33 of the Code.

c) Illinois Correctional Industries. Procurement from Illinois Correctional Industries constitutes contracting between State governmental bodies, which is exempt from Code requirements, and shall be done in accordance with this Part. These procurements may utilize an annual master contract with agreed-upon unit prices for construction services, against which sub-orders may be placed for specific CDB projects. Specifications that require a vendor to obtain materials or services from another source shall identify at least three sources for the material or services, unless CDB requests, and the SPO approves, a specification with only one or two sources.

d) Single-Prime. In accordance with Section 30-30 of the Code and subject to prior approval by PPB, CDB may, on certain projects, retain one contractor to provide all subdivisions of the work necessary to complete the construction contract.

e) Design-Build. In accordance with Section 5 of the Design-Build Procurement Act, CDB may use the design-build delivery method for certain projects, provided it first makes a written determination that it is in the best interest of the State to enter into a design-build contract. This written determination must include a description of particular advantages and must be filed with the Procurement Policy Board within 15 days after the initial determination.

44 Ill. Adm. Code 8.3025 Retention Trust

a) Contractors may elect to have retention deposited in a trust provided that:

The project is funded by direct appropriation to CDB;
the contract exceeds $300,000; and
the specified contract time is 360 calendar days or longer.

b) A retention trust agreement must be entered into before application by the contractor for the first payment. The agreement will include, but not be limited to, the following:

the amount to be deposited;
terms and conditions of payment in case of default by the contractor;
termination upon completion, default or other breach; and
the contractor's responsibility for obtaining the written consent of the bank trustee and for paying all costs and fees associated with the trust.

c) Only CDB's retention trust agreement form is acceptable. In the event the contractor fails to deliver the trust agreement duly executed by the contractor and the bank prior to, or at the time of, receipt of the first partial payment, CDB may not execute the trust agreement. CDB may cancel the retention trust agreement for reason of non-performance and demand return of any deposits by the bank.

44 Ill. Adm. Code 8.3030 Construction Project Specifications

When design-bid-build delivery is utilized, except in single prime delivery, and the value of the construction contracts exceed $250,000, separate bidding will be specified for at least the five subdivisions of work enumerated by the Code: plumbing, heating, ventilating, electric and general. If appropriate to the project and advantageous to the State, CDB may add additional subdivisions, including sprinkler work, fire protection, or asbestos abatement, as may be specified in the bid. If, prior to bidding, the work in a particular subdivision is less than the small purchase threshold established in Section 20-20 of the Code, the work may be added to another subdivision.

44 Ill. Adm. Code 8.3035 Expenditure in Excess of Contract Price

a) All change orders, proceed orders and modifications shall be in writing and contain the appropriate authorizations from the agency, user agency and CPO. Documentation shall include a thorough description of the work to be performed, the reason for the change, and any allocation of liability for the increased/decreased cost.

b) Only work that is germane to the original contract shall be added by change order, proceed order or modification. Proposed change orders, proceed orders or modifications that are determined by CDB to not be germane to the original contract shall be procured in accordance with the Code and this Part.

c) Vendors shall not perform any changed work prior to written authorization. Written authorization for a change order, proceed order or modification shall be signed and executed by all parties, including the CPO or the SPO, as appropriate, prior to vendor performance of any changed work. Vendors and CDB shall be required to provide written explanations regarding why changed work was commenced prior to authorization.

d) Notice of approved change orders, proceed orders and modifications shall be published in the Bulletin.

e) Change orders, amendments, proceed orders and modifications are subject to Section 5-30 of the Code.

44 Ill. Adm. Code 8.3040 Purpose

CDB shall procure architectural, engineering and land surveying services in compliance with the QBS Act. CDB shall procure construction management services in compliance with Article 33 of the Code (Construction Management Services). CDB shall select DB services in compliance with the DB Act. Primary responsibility for the selection, grounded on qualifications, of construction-related services under the QBS and DB Acts and Section 30-45 of the Procurement Code, shall be the responsibility of CDB. Procurement functions related to the selection, and governed by the Procurement Code, shall be the responsibility of the CPO pursuant to Section 10-20(a)(1) and 50-1 of the Procurement Code. These procurement functions include determinations related to the fairness and transparency of the selection (pursuant to Sections 20-10(f) and (g), 20-15(f) and 20-35(e) of the Code), determinations of responsibility and responsiveness and compliance with all relevant provisions of the Procurement Code.

44 Ill. Adm. Code 8.3043 Other Acts

The SPO shall review procurements for compliance with Section 30-45 of the Code (Other Acts). This review is governed by other agencies' responsibility for administration of those other Acts (e.g., for the Prevailing Wage Act, the Department of Labor), and can include, but is not limited to, debarment, ineligibility status, or other sanctions as determined by a State agency under those Acts.

44 Ill. Adm. Code 8.3045 Written Determination

a) Before electing to use DB on a given project, CDB shall make a written determination, including a description as to the particular advantages of the DB procurement method for that project. The written determination shall be reviewed and approved by the CPO as to the adequacy of information in subsections (a)(1) through (5), but CDB shall determine whether the DB concept is to be pursued. Approval by the CPO will not be unreasonably withheld. The following factors shall be considered and addressed in that statement:

The probability that the DB procurement method will be in the best interest of the State by providing a material savings of time or cost over the design-bid-build or other delivery system. The best interest of the State justification will show the specific benefits of using the DB method, including documentation of the estimates or scheduling impacts.
The type and size of the project and its suitability to the DB procurement method.
The ability of CDB to define and provide comprehensive scope and performance criteria for the project.
The project will comply with the disadvantaged business and equal employment practices of the State, as established in the BEMFD, Section 45-57 of the Code and Section 2-105 of the Illinois Human Rights Act.
Within 15 days after the initial determination, CDB will provide an advisory copy of the written determination to PPB, and shall maintain the full record of determination for 5 years.

b) Before electing to use CM on a given project, CDB shall make a written determination, including a description as to the particular advantages of the CM procurement method for that project. The written determination shall be reviewed and approved by the CPO as to the adequacy of information in subsections (a)(1) through (5) and in the written determination. Approval by the CPO will not be unreasonably withheld.

44 Ill. Adm. Code 8.3050 Public Notice

a) With the exception of contracts with an estimated basic professional fee of less than $25,000, whenever CDB requires the services of an A/E or land surveyor, CDB shall submit to the CPO a notice of the need for services, also known as an RFP, for publication in the Bulletin. In addition, CDB may publish a list of projects whose contract values do not exceed $25,000. The CPO shall publish in the Bulletin any notice that meets the requirements of this Part.

b) When the services of a CM are required, CDB shall publish a request for proposals setting forth the nature of the projects.

c) The public notice shall include an abstract of the services required for each project, a description of each project, and the required expertise of the A/E or CM to be considered. The public notice shall also include the statement of qualifications form to be completed for each project, as well as the date and time by which submittal of the statement of qualifications will be accepted.

d) Notice shall be posted in CDB's Procurement Bulletin and may be published in the official State newspaper or otherwise made available in print. CDB may also publish the notice in related construction industry service publications.

e) In addition to the other requirements of this Section, a request for proposal for CM services will also be mailed to each vendor prequalified under Section 33-10 of the Code. When CDB establishes additional criteria for special projects under 44 Ill. Adm. Code 900.140 (Prequalification of Construction Managers), the notice shall be published at least 30 days before the date the special prequalification application or the statement of qualifications is due.

f) The public notice shall be published at least 14 days prior to the date for submittal of the statement of qualifications.

g) CM prequalification standards may be revised to be more closely related to the needs or environment of the special project, e.g., required vendor and/or personnel experience may be limited to a particular size of project or to experience in a particular environment, such as correctional facility work.

44 Ill. Adm. Code 8.3055 Design-Build Request for Proposal

a) Notice of intent to issue a design build RFP shall be provided 14 days prior to issuing the RFP.

b) CDB shall provide a copy of the request for proposal to any party requesting a copy.

c) An RFP shall be prepared by CDB for each project and will contain the following information:

The Capital Development Board as the issuing agency;
A preliminary schedule for the completion of the contract;
The proposed budget for the project, the source of funds, and the currently available funds at the time the RFP is submitted;
Prequalification criteria for DB entities wishing to submit proposals. The criteria shall include CDB's normal prequalification, licensing, registration, and other requirements and any additional criteria deemed necessary by CDB;
Material requirements of the contract, including the proposed terms and conditions, required performance and payment bonds, insurance, the entity's plan to comply with the utilization goals for business enterprises established in the BEMFD Act and with Section 2-105 of the Illinois Human Rights Act, and any other requirements deemed important by CDB;
The scope and performance criteria shall:

A) Be in sufficient detail and contain adequate information to reasonably apprise the qualified DB entities of CDB's overall programmatic needs and goals, including criteria and preliminary design plans, general budget parameters, schedule and delivery requirements;

B) Include a description of the level of design to be provided in the proposals, including the scope and type of renderings, drawings and specifications that will be required by CDB to be produced by the DB entities;

The evaluation criteria for each phase of the solicitation, including relative importance or weighting factor of each item (see Sections 1030.170 (Phase 1 Evaluation) and 1030.190 (Phase 2 Evaluation);
The number of entities (no fewer than 2 and no more than 6) that will be considered for the technical and cost evaluation phase (Phase 2);
The submittal schedule:

A) For projects estimated to cost less than $10 million, at least 21 days shall be allowed to prepare and submit Phase 1 proposals after the date of the issuance of the RFP;

B) For projects estimated to cost more than $10 million, at least 28 days shall be allowed to prepare and submit Phase 1 proposals after the date of the issuance of the RFP;

C) For all projects, at least 30 days shall be allowed to prepare and submit Phase 2 proposals after the selection of entities from the Phase 1 evaluation is completed;

Any other relevant information that CDB chooses to supply.

d) The DB entity shall be entitled to rely upon the accuracy of information included in the RFP in the development of its proposal.

44 Ill. Adm. Code 8.3060 Preparation of Design-Build Scope and Performance Criteria

a) The scope and performance criteria shall be prepared by a design professional who is an employee of CDB, or CDB may contract with an independent design professional selected under the QBS Act to provide these services.

b) The design professional and/or officers of the design vendor that prepare the scope and performance criteria are prohibited from participating in any DB entity proposal for the project.

44 Ill. Adm. Code 8.3065 Submittal Requirements

a) A/E and CM

All A/Es submitting statements of qualifications for a specific project shall be prequalified with CDB prior to the date and time that the offers are due. All CMs submitting statements of qualifications for a specific project shall be prequalified with CDB as CMs prior to the date and time that the submittals are due. Failure to be prequalified will result in rejection of the submittals.

b) In order to be considered responsive, a submittal must include:

A letter of interest that contains a statement of qualifications (CDB Form 255);
The names of persons who will perform the services, including the designated staff of any listed consultant, and their project assignments or duties;
If a statement of qualifications is required:

A) the names of persons who will perform the services, including the designated staff of any listed consultant, and their project assignments or duties;

B) for each person listed, a resume describing the person's experience and expertise relevant to performance of the assignment;

A summary of the vendor's history and experience that would demonstrate its administrative ability to successfully carry out projects of the magnitude or complexity of the offered project.

c) If the offeror will use subcontractors to perform professional services, then the following shall be required:

Those subcontractors shall also be prequalified with CDB prior to the date and time that the submittals are due, or the offer shall be rejected; and
The offeror shall clearly indicate the anticipated percentage of the services that will be performed by each listed subcontractor and identify whether each consultant is certified as a MBE, FBE, VBE or SDVOB.

d) Failure to comply with the requirements of this Section regarding subcontractors shall result in rejection of the submittal.

e) If the offeror is a DB entity, the following shall be required:

Proposals must be properly identified and sealed.
Phase 1 proposals shall include a list of all design professionals and other entities, as defined in Section 30-30 of the Code, to which any work may be subcontracted during the performance of the contract.
Phase 1 proposals shall include a list of all entities that will perform any of the 5 subdivisions of work defined in Section 30-30 of the Code.
Phase 2 proposals shall include a bid bond and security in the format and amount designated in the RFPs.
Phase 2 proposals shall contain a separate sealed envelope with the cost information.
The drawings and specifications of the proposal shall remain the property of the DB entity.
Subject to approval by the CPO, proposals may be withdrawn prior to evaluation for any cause. After evaluation begins by CDB, proposals may only be withdrawn if there is clear and convincing evidence of material error.

44 Ill. Adm. Code 8.3070 Selection Procedures

a) CDB shall select three A/Es or CMs qualified to provide the professional services for a specific project. These A/Es or CMs shall be ranked in order of qualifications. Board approval of these A/Es or CMs shall be final and binding.

b) In the event that fewer than three A/Es or CMs submit statements of qualifications for a specific project, if CDB determines that one or both are qualified to perform the services, CDB may proceed with the selection process.

44 Ill. Adm. Code 8.3075 Evaluation Committee

a) A/E or CM Evaluation Committee. The CDB Executive Director shall appoint an agency employee to serve as chair of the evaluation committee. The evaluation committee chairman shall appoint a committee to recommend to the Executive Director and the Board a list of A/Es or CMs qualified to perform the required services. This committee may be established for each selection and may be composed of standing members and rotating members from CDB staff. In addition to the CDB staff members, a representative from the user agency may be requested to be a member of the committee. A member of the public can be included in the committee.

b) DB Selection Committee

CDB shall establish a committee to evaluate and select the DB Entity.
The committee shall consist of 5 or 7 members and include at least one licensed design professional and 2 members of the public. Public members may not be employed by or associated with any vendor holding a contract with CDB.

A) One public member shall be nominated by associations representing the general design or construction industry and one member shall be nominated by associations that represent minority or female-owned design or construction industry businesses.

B) The licensed design professional may be an employee of CDB or a representative of the vendor that prepared the scope and performance criteria.

c) The selection committee may be designated for a set term or for the particular project, subject to the RFP.

d) The members of any selection committee must certify for each project that no conflict of interest exists between the members and any entities submitting proposals or statements of qualifications. If a conflict exists, the member must be replaced before any review of proposals or statements of qualifications.

44 Ill. Adm. Code 8.3080 Evaluation Procedures

a) In making its recommendations, the selection committee may consider, among other factors:

The A/E's or CM's qualifications.
The ability of professional personnel submitted by the A/E or CM.
The A/E's or CM's past record and experience.
The prior performance of the A/E or CM on CDB professional services agreements. For CMs, this shall be determined by review of the CM Performance Evaluations on previous CM projects, Performance Evaluations of the CM vendor on projects in which it participated as an A/E or contractor, and any other related material.

A) CDB shall evaluate the performance of each firm upon completion of a contract. Evaluations shall be made available to the firm and the firm may submit a written response, with the evaluation and response retained solely by CDB. The evaluation and response shall not be made available to any other person or firm and is exempt from disclosure under the Freedom of Information Act [5 ILCS 140]. The evaluation shall be based on the terms identified in the construction manager's contract. [30 ILCS 500/33-45]

B) In addition to subsection (a)(4)(A), CDB reserves the right to evaluate a firm during a project, when performance issues warrant that action.

C) Any firm receiving a negative evaluation at any time during a project shall be notified of such evaluation within seven days of its issuance.

The willingness of the vendor to meet time requirements.
The location of the project relative to the vendor's place of business.
The results of preliminary evaluations performed by CDB staff.
The current work load of the A/Es or CMs and their prior selections by CDB. This determination shall be in writing and be reviewed by the CPO.
Professional references for work performed on similar projects.
Interviews conducted with the A/Es or CMs.
Minority, female and veterans business goals of programs set out in 44 Ill. Adm. Code 1000.140 and 44 Ill. Adm. Code 20.

b) Before beginning review of a CM's statement of qualifications, the committee shall prepare a table of the factors on which the CMs will be rated and the weight to be assigned to each factor. The table of factors, and the scores of each reviewed submittal, will be kept on file for no less than 2 years from the date of the selection.

c) In no case shall the committee, prior to selecting an A/E or CM for negotiation, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation. Submission of pricing information in a separate envelope to be opened at a later time shall not be allowed.

44 Ill. Adm. Code 8.3085 Preliminary Evaluations

CDB may appoint staff members to perform a preliminary evaluation (prescreening) to provide a preliminary ranking of the A/Es or CMs for the committee's consideration. This prescreening shall consider, among other factors, the relevant project experience of the prospective A/Es or CMs and the expertise and experience of the vendor and its consultant staff to be assigned to the project if the vendor is selected.

44 Ill. Adm. Code 8.3090 Interviews

a) The evaluation committee shall conduct interviews when the estimated value of the basic services fee exceeds $300,000. The CDB Executive Director may choose to conduct interviews for smaller projects under special circumstances. A minimum of three vendors will be interviewed unless fewer than three submittals are received. The CDB Executive Director, in consultation with the Board and with approval of the CPO, may exempt any contract from requiring interviews.

b) CDB may choose to conduct interviews on DB projects when project complexity or other special circumstances warrant doing so. In these cases, all vendors on the Phase 2 shortlist will be interviewed. These circumstances, if known, will be included in CDB's initial written determination (see 44 Ill. Adm. Code 1030.120) and the interview requirement will be part of the original RFP. If circumstances become known later, CDB will amend its written determination and notify the Phase 2 shortlist entities by written amendment of the RFP.

44 Ill. Adm. Code 8.3095 Phase 1 Design-Build Evaluation

a) In Phase 1, CDB will evaluate and shortlist the DB entities based on qualifications submitted in response to the RFP.

b) Evaluation shall be based on the prequalification requirements, evaluation criteria and relative importance or weighting of evaluation criteria as set forth in the RFP.

c) Proposals shall not be reviewed until after the deadline for submission has passed.

d) Proposals must meet all material requirements of the RFP or they may be rejected as non-responsive.

e) CDB shall have the right to reject any and all proposals subject to CPO approval.

f) CDB shall maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

g) Phase 1 evaluation criteria shall include:

experience of personnel;
successful experience with similar project types;
financial capability in relation to the size of the project;
timeliness of past performance;
experience with similarly sized projects;
successful reference checks of the firm;
commitment to assign personnel for the duration of the project;
qualifications of the entity's design consultants;
CDB prequalification in good standing of any subcontractor proposed to perform any of the 5 subdivisions of work defined in Section 30-30 of the Code;
Ability or past performance in meeting or exhausting good faith efforts to meet the utilization goals for business enterprises established in the BEMFD Act, Section 45-57 of the Code and with Section 2-105 of the Illinois Human Rights Act;
Other relevant criteria deemed necessary by CDB.

h) CDB will eliminate any DB entity from consideration for evaluation or award if the entity has any pecuniary interest in the project or has other relationships or circumstances, including, but not limited to, long-term leasehold, mutual performance, or development contracts with CDB, that may give the DB entity a financial or tangible advantage over other DB entities in the preparation, evaluation or performance of the DB contract or that create the appearance of impropriety.

i) CDB will not consider any proposal that does not include the entity's plan to comply with the requirements established in the BEMFD Act and with Section 2-105 of the Illinois Human Rights Act, if applicable.

j) CDB will publish the names of all DB entities submitting Phase 1 proposals on CDB's volume of the Procurement Bulletin and in the next Professional Services Bulletin (within the CDB volume of the Procurement Bulletin) after the deadline for submission.

44 Ill. Adm. Code 8.3100 Design-Build Shortlist

a) Upon completion of the Phase 1 qualifications evaluation, CDB shall create a shortlist of no fewer than 2 and no more than 6 (or the maximum number noted in the RFP) of the most highly qualified DB entities and shall be reviewed by the CPO for conformance with the evaluation criteria in Section 8.3095.

b) CDB shall notify in writing the entities selected for the shortlist.

The notification shall commence the period for preparation of Phase 2 submittals as listed in the RFP.
CDB may extend the period beyond that listed in the RFP, at its discretion, by including the new deadline in the written notification.

c) All DB entities selected for Phase 2 evaluation shall be published on CDB's volume of the Procurement Bulletin after that determination.

44 Ill. Adm. Code 8.3105 Phase 2 Design-Build Evaluation

a) In Phase 2, CDB will evaluate and rank the selected DB entities based on their technical and cost proposals.

b) Evaluation shall be based on the technical and cost submission components and relative importance or weighting of the technical and cost submission components as set forth in the RFP.

c) Proposals shall not be reviewed until after the deadline for submission has passed.

d) Proposals must meet all material requirements of the RFP or they may be rejected as non-responsive.

e) CDB shall have the right to reject any and all proposals subject to approval by the CPO.

f) CDB shall maintain a record of the evaluation scoring to be disclosed in event of a protest.

g) CDB shall include the following criteria in the Phase 2 technical evaluation of DB entities:

compliance with objectives of the project;
compliance of proposed services to the RFP requirements;
quality of products or materials proposed;
quality of design parameters;
design concepts;
innovation in meeting the scope and performance criteria;
constructability of the proposed project;
other relevant criteria deemed necessary by CDB.

h) CDB shall include the following criteria in every Phase 2 cost evaluation:

total project cost;
construction costs;
time of completion;
other relevant criteria deemed necessary by CDB;
a total project cost criteria weighting factor of 25% in accordance with 30 ILCS 537/30(c).

i) CDB shall directly employ or retain a licensed design professional to evaluate the technical and cost submissions to determine if the technical submissions are in accordance with generally accepted industry standards.

44 Ill. Adm. Code 8.3110 Delegation of Architect/Engineer Evaluations

a) CDB may delegate the evaluation of prospective A/Es to the user agency (school district, college, university, Illinois Community College Board or unit of local government). The user agency shall be required to comply with this Part, the QBS Act or the Local Government Professional Services Selection Act (LGPSS Act), as may be applicable.

b) Recommendations pursuant to the QBS Act for basic service fees of $25,000 or more shall state the three selected vendors ranked in order of qualifications.

c) CDB shall be permitted to assign a member of its staff to be a voting member of the user agency's evaluation committee.

d) The user agency shall transmit its recommendations to CDB for review and approval of the Board.

e) CDB will provide a form for submitting the recommendations. Transmittal to CDB shall include a letter with a certification statement requiring an authorized signature verifying that the selections were made in accordance with the QBS Act or the LGPSS Act.

f) CDB may request the user agency make other recommendations if the vendors recommended are not acceptable to CDB.

44 Ill. Adm. Code 8.3115 Award of Design-Build Contract

a) CDB may award the DB contract to the highest overall ranked entity based on the Phase 2 submissions.

b) Notice of award shall be made in writing. Unsuccessful entities shall also be notified in writing.

c) CDB may not request a best and final offer after the receipt of proposals.

d) CDB may negotiate with the selected DB entity after award, but prior to contract execution, for the purpose of securing better terms than originally proposed, provided that the salient features of the RFP are not diminished.

44 Ill. Adm. Code 8.3120 Small Projects

a) For contracts whose estimated value is less than $25,000, CDB may select any prequalified A/E in accordance with Section 45 of the QBS Act.

b) For contracts whose value is less than $25,000, CDB may select any prequalified CM in accordance with Section 33-35 of the Code.

c) In any case in which the total overall cost of the project is estimated to be less than $10 million, CDB may combine the two-phase procedure for Design-Build submittals into one combined step, provided that all the requirements of evaluation are performed in accordance with this Part.

44 Ill. Adm. Code 8.3125 Emergency Projects

a) CDB may immediately select an A/E when it is in the best interest of the State or in emergencies to protect public health or safety in accordance with Section 50 of the QBS Act.

b) CDB may immediately select a CM when it is in the best interest of the State or in emergencies to protect public health or safety in accordance with Section 33-40 of the Code.

44 Ill. Adm. Code 8.3130 Construction Manager Procurement Limitations

a) A CM cannot participate in a selection process if it or a substantially affiliated vendor is under contract or in the process of contracting with CDB for other goods or services required for the project and the CM's duties will involve or relate to those goods or services.

b) A CM selected to provide construction management services, or a substantially affiliated vendor, may not bid on or otherwise be awarded a construction contract for the project.

c) Notwithstanding the provisions of subsections (a) and (b), when it is determined in writing to be in the State's best interest, the CM may provide or perform, directly or through unrelated contractors, basic services for which reimbursement is provided in the general conditions of the CM contract, or any other goods or service that does not conflict with or give the appearance of conflicting with the CM's duties.

d) A vendor is considered to be "substantially affiliated" for the purpose of this Section if:

the affiliated firm shares more than 5% common ownership with the CM; or
the individuals with more than 5% ownership interest, any officer or director of the CM firm, or any individual authorized to sign bids, proposals or contracts for the CM firm has any of these same relationships with, or owns or controls more than 5% of, the affiliated firm or is an officer or director of, or is authorized to sign bids, proposal or contracts for, the affiliated firm.

44 Ill. Adm. Code 8.3135 Publication of Award

The names of the three recommended A/E, and CM firms and the respective projects shall be published in CDB's Procurement Bulletin within 3 days after the selection and prior to Board action on the selection. The contract award shall be posted no later than one day after the board selection. All other A/E and CM awards that do not require board action shall be posted no later than the next business day. The protest period shall not begin until such publication.

44 Ill. Adm. Code 8.3140 Design-Build Reports and Evaluations

a) CDB shall require each selected DB entity to submit a written report at the end of every 6 month period following the contract award, and again prior to final contract payout and closure, detailing its efforts and success in implementing the entity's plan to comply with the utilization goals for business enterprises established in the BEMFD Act and Section 2-105 of the Illinois Human Rights Act.

b) If the entity's performance in implementing the plan falls short of the performance measures and outcomes set forth in the plans submitted by the entity during the proposal process, CDB shall require a detailed written report informing the General Assembly and the Governor whether and to what degree the DB entity promoted the utilization goals for business enterprises established in the BEMFD Act and Section 2-105 of the Illinois Human Rights Act.

44 Ill. Adm. Code 8.3145 Federal Requirements

CDB will comply with federal law and regulations and take all necessary steps to adapt the rules, policies and procedures to remain eligible for federal aid.

44 Ill. Adm. Code 8.3150 Procurement Under the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act

Solicitation for procurement of services of architects/engineers (A/Es), or related professionals, shall be in accordance with this Subpart with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act and CDB's rules (44 Ill. Adm. Code 1000).

44 Ill. Adm. Code 8.3155 Procurement Under the Design-Build Procurement Act

Solicitation for procurement of design-build services shall be in accordance with this Subpart and the Design-Build Procurement Act and CDB's rules (44 Ill. Adm. Code 1030).

44 Ill. Adm. Code 8.4505 Procurement Preferences

44 Ill. Adm. Code 8.4510 Resident Vendor Preference

a) "Illinois resident vendor", as used in this Section, means a person, including a foreign corporation or other entity, that is authorized to transact business in this State and having a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when a given competitive solicitation for a public contract was first advertised or announced.

b) In breaking a tie bid or proposal, as described in Section 8.2037, an Illinois resident vendor shall be given the award.

c) An Illinois resident vendor shall be allowed a preference over a non-resident vendor equal in amount to the preference, if any, given or required by the state of the non-resident vendor to its resident vendors.

d) If only non-resident bidders are bidding, the purchasing agency has the right to specify that Illinois labor and manufacturing locations be used as part of the manufacturing process. This specification may be negotiated as part of the solicitation process.

e) This Section does not apply to any contract for any project for which federal funds are available for expenditure when its provisions may be in conflict with federal law or federal regulation.

44 Ill. Adm. Code 8.4526 Environmentally Preferable Procurement

Construction shall be accomplished in accordance with the Green Buildings Act.

44 Ill. Adm. Code 8.4535 Qualified Not-for-Profit Agencies for Persons with Severe Disabilities

a) Use. The CPO shall distribute to each SPO and CDB a list of supplies and services available from qualified not-for-profit agencies for persons with severe disabilities (sheltered workshops). Purchases may be made from sheltered workshops without prior notice or competition. Qualified Not-for-Profit Agencies who contract with the State must comply with all other provisions of the Illinois Procurement Code. Notice of purchases shall be posted on the Illinois Procurement Bulletin.

b) Pricing Approval. Prior to contracting with a sheltered workshop, the State Use Committee (see Section 45-35(c) of the Code) must determine that the price is not substantially more than a competitively solicited price.

44 Ill. Adm. Code 8.4545 Small Business

a) Set-Aside. The CPO may set-aside a certain portion of construction contracts for small businesses.

b) Small Business List. The CPO may develop a list, or may use a list maintained by another State agency or another CPO, of vendors that meet the criteria of small business. As part of the prequalification process, vendors desiring to submit bids or proposals or otherwise to contract for items set aside for small businesses shall submit information as specified verifying that the vendor qualifies as a small business under this Part. A business that fits the definition of small on the day of award or proposal opening will be considered small for the duration of the contract. The agency shall, through its prequalification program, identify contractors who meet the criteria for small businesses. When utilizing vendor lists for soliciting small business vendors, all vendors shall be solicited under the commodity code representing the goods or services being solicited.

c) Any procurement set aside for small businesses shall be so identified in the Bulletin notice and the solicitation documents. Bids or proposals received from large businesses will be rejected.

d) Withdrawal of Set-Aside. If the SPO determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the SPO may reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question. CDB may make a recommendation that the SPO consider rejection of a bid in such cases. When a small business set-aside is withdrawn, notification shall be published in the Bulletin with an explanation. After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with this Part but without the small business designation.

e) Criteria for Small Business

Unless the CPO provides a definition for a particular procurement that reflects industrial characteristics, a small business is a business that is independently owned and operated and is not dominant in its field of operation.

A) A wholesale business is a small business if its annual sales for its most recently completed fiscal year do not exceed $10,000,000.

B) A retail business or business selling services is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $6,000,000.

D) A construction business is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $10,000,000.

E) If a business is any combination of retailer, wholesaler or construction business, the annual sales for each component may not exceed the higher of $10,000,000 for a wholesaler, $6,000,000 for a retailer, $10,000,000 for a construction business or the amounts shown in Section 45-45 of the Code. For example, a business that is both a retailer and wholesaler may not have total sales exceeding $16,000,000 and the retail component may not exceed $6,000,000 and the wholesale component may not exceed $10,000,000. If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed 250.

A small business in Illinois is defined as a company that is incorporated or organized as a domestic corporation under the Business Corporation Act of 1983 [805 ILCS 5/1.80].
A small business that is not dominant in its field of operations means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and reflective of the industry.
Businesses artificially divided to qualify as a small business will be disallowed. When computing the size status of a vendor and whether the vendor qualifies as a small business, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates, concerns and related entities shall be included. Concerns and related entities are affiliates of each other when one directly or indirectly controls or has the power to control the other, or when a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists. In determining whether concerns and related entities are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management, identity of interest (substantially identical business or economic interests such as family members, individuals or firms with common investments, or firms that are economically dependent through contractual or other relationships) and contractual arrangements. In determining whether affiliation exists, the CPO will consider the totality of the circumstances, and may find affiliation even though no single factor is sufficient to constitute affiliation. A franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.
Vendors certified as minority, female, veteran-owned or any other business certification, that also meet the criteria for a small business, can be recognized as a small business for the purpose of set-asides.

f) Small Business Specialist. The CPO may designate a small business specialist who shall have the duties set forth in Section 45-45(e) of the Code and who shall also act as coordinator of small business. The designated small business specialist shall compile statistics provided by the State agency needed to make the small business annual report to the General Assembly required under Section 45-45(f) of the Code.

44 Ill. Adm. Code 8.4557 Veterans

It is the goal of the State to promote and encourage the continued economic development of small businesses owned and controlled by qualified veterans and that qualified service-disabled veteran-owned small businesses (SDVOSB) and veteran-owned small businesses (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 the goal to be awarded to SDVOSB and VOSB. [30 ILCS 500/45-57]. CDB shall award contracts in compliance with the goal to award contracts to SDVOSB and VOSB businesses (see 44 Ill. Adm. Code 20).

44 Ill. Adm. Code 8.4570 Contracting with Businesses Owned and Controlled by Minorities, Females and Persons with Disabilities

a) Procurements made under the Code are subject to the requirements of the BEMFD Act.

b) Responsiveness of bidders or offeror determinations related to 30 ILCS 575 are subject to the review and approval of the CDB Good Faith Effort Committee for the purpose of ensuring that the provisions of the Act are consistently applied.

c) CDB shall develop Rules for compliance with 30 ILCS 575 to include:

Goal Setting;
Vendor Assistance;
Performance of Commercially Useful Functions.

44 Ill. Adm. Code 8.4590 Notice of Preferences

The Bulletin and solicitation document shall state whether a preference applies or may apply and the amount or type of preference.

44 Ill. Adm. Code 8.4599 Domestic Products

a) This Section applies to the procurement of "procured products" ("assembled articles, materials or supplies" [30 ILCS 517/5]) incorporated into construction projects unless:

the procurement is exempt from competitive solicitation requirements as in the case of a small, emergency or sole economically feasible source situation;
CDB determines that a specific project is too complex for the 5 major construction building trades to identify the numerous individually procured products required for the project;
CDB determines that procured products required for a specific project are too numerous or complex to be able to efficiently assess the sites where manufactured; or
One of the exemptions of Section 10 of the Procurement of Domestic Products Act applies.

If the State needs iron ore, this Section would not apply because the State would be asking for a raw material.
If the State needs a steel ingot, the purchase would be subject to this Section as the steel ingot was subject to a manufacturing process. The iron ore used in manufacturing the ingot would not be subject to any domestic restriction.
If the State needs a steel I-Beam, the I-Beam would be subject to this Section. The iron ore and steel used in creating the I-Beam would not be subject to any domestic restriction.
If the State needs a structure made of steel I-Beams, the assembly would have to be done domestically. The iron ore, steel and I-Beams used in building the structure would not be subject to any domestic restriction.

c) Specifications for manufactured supplies shall include a reference to the preference established in this Section. The preference shall be as follows:

The low bid shall be identified without regard to whether the product is a domestic product.
In the event of a tie bid, the vendor that certifies it will provide domestic supplies shall be given preference.
If the low bid or most advantageous proposal does not contain a certification that the supply items are domestic, then any responsive and responsible vendor that is within 2% of the identified vendor's bid price that has made that certification shall be evaluated as though its price was 2% lower, subject to a maximum dollar value of $50,000. Determinations of price shall reflect consideration of life cycle costs, including maintenance and repair costs.
The winning vendor will be determined after application of the preference.
Notwithstanding the preference outlined in this subsection (c), if the appropriate SPO determines that the price differential calculated using the preference is not acceptable given the particular procurement and the economic circumstances, the award may be conditioned on receipt of an acceptable price reduction. If the price cannot be reduced to an acceptable level, the original low priced or most advantageous proposal may be selected for award.

d) CDB shall include in the procurement file documentation showing the application of any preference given and any determination that the supplies involved in the purchase were not subject to the Procurement of Domestic Products Act.

44 Ill. Adm. Code 8.5002 Continuing Disclosure; False Certification

a) Multi-year contracts and subcontracts are subject to the annual recertification requirements of Section 50-2 of the Code. Every person that has entered into a multi-year contract and every subcontractor with a multi-year subcontract shall certify, by July 1 of each fiscal year covered by the contract after the initial fiscal year, to the responsible CPO whether it continues to satisfy the requirements of Article 50 of the Code pertaining to eligibility for a contract award. If a contractor or subcontractor is not able to truthfully certify that it continues to meet all requirements, it shall provide with its certification a detailed explanation of the circumstances leading to the change in certification status. A contractor or subcontractor that makes a false statement material to any given certification required under Article 50 of the Code is, in addition to any other penalties or consequences prescribed by law, subject to liability under the Illinois False Claims Act [740 ILCS 175] for submission of a false claim. [30 ILCS 500/50-2]

b) The CPO may prescribe a standard format and procedure for annual recertification and may include annual certifications as part of a registration or prequalification process.

c) Should a vendor be unable to certify that it continues to meet requirements of Section 50 of the Code, the relevant information detailing any changes shall be submitted by the vendor or the agency to the SPO for review and disposition.

44 Ill. Adm. Code 8.5005 Bribery

a) Prohibition

No person or business shall be awarded a contract or subcontract who:

Has been convicted under the laws of Illinois or any other state of bribery or attempting to bribe an officer or employee of the State of Illinois or any other state or branch of the federal government in that officer's or employee's official capacity; or
Has made an admission of guilt of the conduct described in subsection (a)(1) as a matter of record, but has not been prosecuted for that conduct.

b) Businesses

No business shall be barred from contracting with any unit of State or local government, or subcontracting under such a contract, as a result of a conviction described in subsection (a)(1) of any employee or agent of the business if the employee or agent is no longer employed by the business and:

The business has been finally adjudicated not guilty; or
The business demonstrates to the governmental entity with which it seeks to contract or which is a signatory to the contract to which the subcontract relates, and that entity finds that the commission of the offense was not authorized, requested, commanded or performed by a director, officer or high managerial agent on behalf of the business, as provided in Section 5-4(a)(2) of the Criminal Code of 2012 [720 ILCS 5-4(a)(2)].

c) Conduct on Behalf of Business

For purposes of this Section, when an official, agent or employee of a business commits the acts contained in subsection (a)(1) on behalf of the business and in accordance with the direction or authorization of a responsible official of the business, the business shall be chargeable, for purposes of this Section, with that conduct.

d) Certification

Every bid submitted to and contract executed by the State and every subcontract subject to Section 20-120 of this Code shall contain a certification by the contractor or the subcontractor, respectively, that the contractor or subcontractor is not barred from being awarded a contract or subcontract under this Section, and acknowledges that the CPO may declare the related contract void if any certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontractor upon the State's request after a finding that the subcontractor's certification was false. A contractor or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony. [30 ILCS 500/50.5]

44 Ill. Adm. Code 8.5010 Felons

a) Unless otherwise provided, no person or business convicted of a felony shall do business with the State of Illinois or any State agency, or enter into a subcontract subject to Section 120 of this code, from the date of conviction until 5 years after the date of completion of the sentence for that felony, unless no person held responsible by a prosecutorial office for the facts upon which the conviction was based continues to have any involvement with the business.

b) Every bid submitted to and contract executed by the State and every subcontract subject to this Part shall contain a certification by the bidder or contractor or subcontractor, respectively, that the bidder, contractor or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges the CPO may declare the related contract void if any of the certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-10]

44 Ill. Adm. Code 8.5011 Debt Delinquency

a) No person shall submit a bid for or enter into a contract or subcontract if that person knows or should know that he or she or any affiliate is delinquent in the payment of any debt to the State, unless the person or affiliate has entered into a deferred payment plan to pay off the debt. [30 ILCS 500/50-11(a)]. For purposes of this Section, terms shall have the meanings ascribed in Section 50-11 of the Code.

b) Every bid submitted to and contract executed by the State and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, contractor or subcontractor, respectively, that the contractor or the subcontractor and its affiliate is not barred from being awarded a contract or subcontract under this Section and acknowledges that the CPO may declare the related contract void if any of the certifications required by this Section completed pursuant to this subsection (b) are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-11(b)]

44 Ill. Adm. Code 8.5012 Collection and Remittance of Illinois Use Tax

a) No person shall enter into a contract with a State agency or enter into a subcontract unless the person and all affiliates of the person collect and remit Illinois Use Tax on all sales of tangible personal property into the State of Illinois in accordance with the provisions of the Illinois Use Tax Act, regardless of whether the person or affiliate is a "retailer maintaining a place of business within this State" as defined in Section 2 of the Use Tax Act. [30 ILCS 500/50-12] For purposes of this Section, terms shall have the meanings ascribed in Section 50-12 of the Code.

b) Every bid submitted and contract executed by the State and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, contractor or subcontractor, respectively, that the bidder, contractor or subcontractor is not barred from bidding for or entering into a contract under subsection (a) and acknowledges that the CPO may declare the related contract void if any of the certifications completed pursuant to this subsection (b) are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-12]

44 Ill. Adm. Code 8.5013 Conflicts of Interest Prohibited by the Code

These conflicts apply to the direct interest of specified State employee or officeholder.

a) Any bid, proposal, offer or proposed contract being recommended for award must be reviewed for conflicts of interest pursuant to Section 50-13 of the Code. No contract will be executed unless the CPO requests and is granted an exemption by the Executive Ethics Commission under Section 50-20 of the Code.

Office or Employment. It is unlawful for any person holding an elective office in this State, holding a seat in the General Assembly, or appointed to or employed in any of the offices or agencies of State government and who receives compensation for such employment in excess of 60% of the salary of the Governor of the State of Illinois, or who is an officer or employee of the Capital Development Board or the Illinois Toll Highway Authority, or who is the spouse or minor child of any such person, to have or acquire any contract, or any direct pecuniary interest in the contract therein, whether for stationery, printing, paper, or any services, materials, or supplies, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois or in any contract of the Capital Development Board or the Illinois Toll Highway Authority. [30 ILCS 500/50-13(a)]
Financial Interests. It is unlawful for any firm, partnership, association, or corporation, in which any person as described in subsection (a)(1) is entitled to receive more than 7½% of the total distributable income or an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/50-13(b)]
Combined Financial Interests. It is unlawful for any firm, partnership, association or corporation, in which any person listed in subsection (a)(1) together with his or her spouse or minor children is entitled to receive more than 15%, in the aggregate, of the total distributable income or an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/50-13(c)]

d) This Section applies to those elected or appointed to an office of Illinois State government. This Section does not apply to those elected to local government offices, including school districts, nor does it apply to those elected to Federal offices in this State.

e) Additional exemptions to the application of this Part are listed in Section 50-13(f) of the Code.

44 Ill. Adm. Code 8.5014 Environmental Protection Act Violations

a) Unless otherwise provided, no person or business found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act shall do business with the State of Illinois or any State agency or enter into a subcontract from the date of the order containing the finding of violation until 5 years after that date, unless the person or business can show that no person involved with the violation continues to have any involvement with the business. [30 ILCS 500/50-14(a)]

b) A person or business otherwise barred from doing business with the State of Illinois and any State agency or any subcontractors under the Code by subsection (a) may be allowed to do business with the State of Illinois or any State agency if it is shown that there is no practicable alternative to the State to contracting with that person or business. [30 ILCS 500/50-14(b)]

c) Every bid submitted to and contract executed by the State and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, contractor and any subcontractor, respectively, that the bidder, contractor or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the CDB or CPO may declare the related contract void if any of the certifications completed pursuant to this subsection (c) are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-14(c)]

44 Ill. Adm. Code 8.5015 Negotiations for Future Employment

a) It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any vendor, partnership, association or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 500/50-15(a)]

b) An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an "independent contractor" is in a "continual contractual relationship" from the effective date of the contract until such time as the contract is terminated.

44 Ill. Adm. Code 8.5020 Exemptions

If an individual finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, he or she shall forward to the CPO the name of the vendor and a description of the proposed contract and of the potential conflict, and shall state why an exemption should be granted. CDB shall determine and include documentation of the agency's position on the conflict. The CPO shall decide whether to disapprove the contract or request a exemption from the Executive Ethics Commission in accordance with Section 50-20 of the Code.

44 Ill. Adm. Code 8.5023 Other Conflicts of Interest

a) Except as otherwise specified in the Public Officer Prohibited Activities Act, no State officer shall be in any manner financially interested, directly or indirectly, in the name of any other person, association, trust or corporation in any contract or work in the making or letting of which the officer may be called upon to act or vote.

b) No contract shall be awarded to a State officer or employee or to a firm, partnership, association or corporation, the owner or principal owners or major officers or primary employees of which are officers or employees of the State agency, or to members of the immediate family of an officer of the State agency, unless the contract is deemed essential to State agency operations and is approved by the CDB Executive Director and the CPO. These approvals shall be filed with the contract and shall be made part of the procurement file.

c) If CDB has its owns policies regarding procurement conflict of interest relative to its own employees, CDB must provide notice of any potential conflict of interest to the SPO along with CDB's policy. This information may be used by the SPO when considering whether to award a contract.

44 Ill. Adm. Code 8.5030 Revolving Door Prohibition

a) CPOs, SPOs, Procurement Compliance Monitors, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to CDB for which they had oversight, in an affected position for a period of at least 6 months. The prohibition includes but is not limited to: lobbying the procurement process; specifying, bidding, proposing bid, proposal, or contract documents; on their own behalf or on behalf of any firm, partnership, association, or corporation. This prohibition applies to all persons who terminate an affected position on or after January 1, 1999. [30 ILCS 500/50-30]

b) The CPO, in conjunction with the CDB ethics officer, shall identify in writing those designees whose job, or whose position description, is at least 51% directly related to procurement. Activities directly related to procurement include, but are not limited to, drafting specifications, preparing solicitations, evaluating offers, negotiating contracts, administering contracts and supervising any of the foregoing. This determination shall be communicated to the affected employees and maintained for a period of at least 2 years following the end or revocation of the designation.

44 Ill. Adm. Code 8.5035 Disclosure of Financial Interests and Potential Conflicts of Interest

a) For purposes of Section 50-35(a) of the Code, an "offer from responsive bidders or offerors" means any bid or offer. Disclosures shall be obtained when the award value exceeds $25,000 and for any subcontracts valued at more than $50,000.

b) For purposes of Section 50-35(b) of the Code, "parent entity" means an entity that owns 100% of the bidding or offering entity.

c) Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

d) "Distributive income" means the income of a company after payment of all expenses, including employee salaries and bonuses, and retained earnings that is distributed to those entitled to receive a share of that income. In the case of a for-profit corporation, distributable income means dividends. When calculating entitlement to distributable income, the entitlement shall be calculated at the end of the company's most recent fiscal year or when distributed.

e) "Personal services" shall be any contract for services subject to the Code, including, by way of example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

f) "Subject to federal 10K reporting" means subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934. "10K disclosure" means a report required under section 13 or 15(d) of the Securities Exchange Act of 1934 (15 USC 78a et seq.).

g) 10K Disclosures

Any vendor subject to federal 10K reporting requirements may submit its 10K to the State in satisfaction of the disclosure requirement of Section 50-35(b) of the Code. The vendor may be required to identify the specific sections or parts in the 10K disclosure containing information, if any, pertaining to those who have an ownership interest or an interest in the distributive income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State. If the financial interest or conflict of interest information requested by the State is not in the 10K, or in a document that may be submitted to the SEC in conjunction with, or in lieu of, the 10K, then that additional documentation shall be provided.
10K disclosures are available for public review. Any potential conflict of interest identified by the public and brought to the attention of CDB, the CPO or the SPO shall be investigated.
In circumstances in which a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code, the SPO or designee may consider information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure in determining whether a potential conflict of interest exists.

h) Form of Disclosure

The form of disclosure shall be prescribed by the CPO and shall include at least the names, addresses and dollar or proportionate share of ownership of each person identified in this Section, his or her instrument of ownership or beneficial relationship, and notice of any potential conflict of interest resulting from the current ownership or beneficial relationship of each person identified in this Section as having any of the following relationships:

A) State employment, currently or in the previous 3 years, including contractual employment of services;

B) State employment of spouse, father, mother, son or daughter, including contractual employment for services in the previous 2 years;

D) Relationship to anyone holding elective office currently or in the previous 2 years, including spouse, father, mother, son or daughter;

F) Relationship to anyone holding appointive office currently or in the previous 2 years, including spouse, father, mother, son or daughter;

G) Employment, currently or in the previous 3 years, as, or by, any registered lobbyist of the State government;

H) Relationship to anyone who is or was a registered lobbyist in the previous 2 years, including spouse, father, mother, son or daughter;

The disclosures required under this Section also include the name and address of each lobbyist required to register under the Lobbyist Registration Act [25 ILCS 170] and other agent of the bidder or offeror who is not identified under Section 50-35(a) of the Code and who has communicated, is communicating, or may communicate with any State officer or employee concerning the bid or offer. The disclosure under this subsection (h)(2) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-1)]
The disclosure required under this Section must also include, for each of the persons identified in subsection (h)(1) or (2), each of the following that occurred within the previous 10 years: debarment from contracting with any governmental entity; professional licensure discipline; bankruptcies; adverse civil judgments and administrative findings; and criminal felony convictions. The disclosure under this subsection (h)(3) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-2)]

i) Intent of Disclosure

The disclosure required in subsection (h) is not intended to prohibit or prevent any contract. The disclosure is meant to fully and publicly disclose any potential conflict to the CPO, SPOs, their designees and executive officers so they may adequately discharge their duty to protect the State. [30 ILCS 500/50-35(c)] A potential conflict of interest occurs in procurement when a person who, by reason of official State position or personal or financial relationship to person with official State position, has or may have the ability to influence the award of a State contract to his or her personal benefit.

Determination by Procurement Officer. When an alleged conflict of interest, or violation of the Code is identified, it shall be reviewed by the CPO or his or her designee, who must determine whether the contract, subcontract, bid, offer or proposal should be awarded. Prior to making a final determination, the potential conflict shall be submitted to PPB for review in accordance with Section 50-35(d) of the Code. If PPB recommends to allow the contract or subcontract, the CPO or his or her designee may award the contract. If the PPB recommends the contract, bid or offer be voided, then the CPO, may determine to award the contract, considering whether the best interest of the State of Illinois will be served. Upon such determination, the EEC shall hold a public hearing. After the public hearing, the CPO may award the contract. The CPO may, at any juncture, determine to void the contract or award if to do so is determined to be in the best interest of the State. All written determinations and any documents relied upon or made part of any public hearing shall become a publicly available part of the procurement file.
Requirements for Reasonable Care and Diligence. The statutory thresholds for disclosure do not relieve the CPO, SPO or their designees from reasonable care and diligence for any contract, bid, offer or proposal. The CPO, SPOs or their designees shall be responsible for using any reasonably known and publicly available information to discover any undisclosed potential conflict of interest and act to protect the best interest of the State of Illinois. [30 ILCS 500/50-35(e)]
Inadvertent or Accidental Failure to Fully Disclose. Inadvertent or accidental failure to disclose shall render the contract, subcontract, bid, proposal or relationship voidable by the CPO if he or she deems it in the best interest of the State of Illinois and, at his or her discretion, may be cause for barring from future contracts, subcontracts, bids, proposals or relationships with the State for a period of up to 2 years. [30 ILCS 500/50-35(f)]
Intentional, Willful or Material Failure to Disclose. Intentional, willful or material failure to disclose shall render the contract, subcontract, bid, proposal or relationship voidable by the CPO if he or she deems it in the best interest of the State of Illinois and shall result in debarment from future contracts, subcontracts, bids, proposals or relationships with the State for a period of not less than 2 years and not more than 10 years. Reinstatement after 2 years and before 10 years must be reviewed and commented upon by the Governor or by an executive ethics board or commission he or she might designate. The comment must be returned to the CPO, who must rule in writing whether and when to reinstate. [30 ILCS 500/50-35]
Other Procurements. In addition, all disclosures shall note any other current or pending contracts, proposals, subcontracts, leases or other ongoing procurement relationships the bidding, proposing, offering or subcontracting entity has with any other unit of State government and shall clearly identify the unit and the contract, proposal, lease or other relationship. [30 ILCS 500/50-35(h)] Absent any other requirements of the Code to the contrary (see Section 50-35(i) of the Code), new disclosures are not required for contract amendments.
Continuing Obligation. The contractor or bidder has a continuing obligation to supplement the disclosure required by this Section throughout the bidding process or during the term of any contract. [30 ILCS 500/50-35(i)]

j) Subcontractors

IFBs and RFPs shall include a provision to require each bidder or offeror to identify, either in its bid or proposal or within 20 days after notice of award of contract, the identity of known subcontractors that will be used in the performance of the contract, as well as the amounts expected to be paid to each subcontractor. The vendor may be requested to provide copies of subcontracts for those subcontracts valued over $50,000, as well as disclosure forms and standard certifications, in such form as is approved by the CPO office.

k) Hearing

Any hearing conducted by the CPO/SPO and required under Section 50-35 of the Code shall be conducted in accordance with Subpart T.

44 Ill. Adm. Code 8.5037 Vendor Registration, Certification and Prohibition on Political Contributions

a) Introduction

Illinois statutes [10 ILCS 5/9-35 and 30 ILCS 500/20-160 and 50-37] restrict political contributions by vendors that are business entities and their affiliated entities and persons; require registration with the State Board of Elections (SBEL); require the CPO to verify that the business entity is required to register with SBEL and is in compliance with registration requirements as of the date bids or proposals are due; and require solicitation and contract certifications of the vendor relative to the requirements of these statutes. This Section supplements requirements found in those statutes and does not excuse compliance with any of those requirements.

b) General Registration Requirements

These requirements apply to contracts, bids and proposals that are subject to the Code:

A) Bids/proposals referenced in this Section are those submitted in response to a competitive solicitation that is posted to the Bulletin on or after January 1, 2009, regardless of the value assigned to the procurement.

B) Bids and proposals include pending bids and proposals.

D) This value is calculated on a calendar-year basis.

On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/proposals. Vendors must register with SBEL when the vendor determines that the value of the contracts and bids/proposals meets the threshold for registration.
An "executive employee" means:

A) the President, Chairman of the Board, Chief Executive Officer and any other individuals who fulfill equivalent duties as the President, Chairman of the Board, or Chief Executive Officer; and

c) Bids and Proposals

In order to be considered for award, a vendor who meets the requirements for registration must be registered with SBEL as the date of the bid or offer is due and shall provide a copy of the Registration Certificate or be able to produce the Registration Certificate on that date.
If a vendor is not registered by the date the bid or offer is due, CDB shall reject the bid or offer as non-responsive.
Prior to award or execution of contract, the SPO, or a designee of the SPO, shall verify the vendor who meets the requirements for registration has registered with SBEL and shall obtain a copy of the Registration Certificate.

d) Contracts

A copy of the Registration Certificate must be in the procurement file in relation to any contract for which a vendor is required to register as set forth in this subsection (d), unless the vendor certifies it is not required to register.

For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals, exceeds $50,000, the vendor must provide the Registration Certificate upon request and make the appropriate contract certification, if it has not already done so. The Registration Certificate may be provided by reference to and incorporation of the vendor's prequalification by the CPO.
CDB shall identify in the solicitation whether the contract is estimated to exceed $50,000 annually. Vendors submitting bids or offers for master contracts estimated to exceed $50,000 annually regardless of consumption are required to register with SBEL.
For indefinite quantity/estimated value contracts that are not estimated to exceed $50,000 annually, a vendor who is otherwise not required to register shall register with SBEL when the maximum value of orders that may be placed pursuant to an indefinite/estimated value contract, plus all other contracts and bids/proposals, exceeds $50,000 annually. The vendor shall register with SBEL within 10 business days after orders exceed $50,000.
For contract amendments, if the value of the amendment, by itself or in combination with the contract being renewed plus other contracts and bids/proposals exceeds $50,000 annually, the vendor must provide the Registration Certificate upon request and make the appropriate contract certification, if it has not already done so.
Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications, and the vendor must supply the Registration Certificate upon request. If any violation by the vendor is not cured within 5 business days after receipt of notification of the violation, the contract is voidable by the State without penalty.
Certification of the requirement to register with the State Board of Elections, required by 30 ILCS 20-160(a), shall be included in or added to each contract that must be filed with the State Comptroller pursuant to Section 20-80 of the Code and those written two-party contracts that need not be filed with the Comptroller. Agencies may require written confirmation of the certification at any time.

e) Voidable contracts

Every solicitation issued and contract executed by the State on or after January 2, 2009, shall contain a statement that the contract is voidable under Section 50-60 if the bidder, offeror or contractor fails to comply with Section 20-160 of the Code.

44 Ill. Adm. Code 8.5038 Lobbying Restrictions

b) Disclosure

Any bidder or offeror on a State contract that hires a person required to register under the Lobbyist Registration Act to assist in obtaining a contract shall:

A) Disclose all costs, fees, compensation, reimbursement and other remunerations paid or to be paid to the lobbyist and the purpose and nature of the lobbying on behalf of the vendor;

B) Not bill or otherwise cause the State of Illinois to pay for any of the lobbyist's costs, fees, compensation, reimbursements or other remuneration;

C) Sign a verification certifying that none of the lobbyist's costs, fees, compensation, reimbursements or other remuneration were billed to the State.

The information in subsection (b)(1)(A), along with all supporting documents, shall be filed with the agency awarding the contract and with the Secretary of State. The CPO shall post this information, together with the contract award notice, on the Bulletin. [30 ILCS 500/50-38(b)]

44 Ill. Adm. Code 8.5039 Procurement Communication Reporting Requirement

a) Reporting Requirement

Any written or oral communication received by a State employee who, by nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract or a project, shall be reported to the Procurement Policy Board in accordance with rules of the Executive Ethics Commission (see 2 Ill. Adm. Code 1620). [30 ILCS 500/50-39(a)]

b) Excepted Communications

These communications do not include the following:

A) statements made by a person publicly in a public forum (however, communications made in a public forum, if made privately, must be reported);

B) statements regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter;

C) statements made by a State employee and:

i) the State employee's agency head;

ii) other State employees of that agency;

iii) employees of the Executive Ethics Commission; or

iv) an employee of another State agency who, through the communication, is either exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the purchasing agency or the appropriate State Purchasing Officer, or exercising oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities;

D) unsolicited communications providing general information about products, services or industry best practices before those products or services become involved in a procurement matter;

E) communications received in response to procurement solicitations, including, but not limited to, vendor responses to a:

i) RFI;

ii) RFP;

iii) request for qualifications;

iv) IFB;

v) small purchase, sole source or emergency solicitation; or

vi) questions and answers posted to the Illinois Procurement Bulletin to supplement the procurement action, provided that the communications are made in accordance with the instructions contained in the procurement solicitation, procedures or guidelines;

F) communications that are privileged, protected or confidential under law; and

G) communications that are part of a formal procurement process as set out by statute, rule or the solicitation, guidelines or procedures, including, but not limited to:

i) the posting of procurement opportunities;

ii) the process for approving a procurement business case or its equivalent;

iii) fiscal approval;

iv) submission of bids;

v) the finalization of contract terms and conditions with an awardee or apparent awardee; and

vi) any other similar formal procurement process. [30 ILCS 500/50-39(a)]

The provisions of this Section shall not apply to communications regarding the administration and implementation of an existing contract, except communications regarding change orders or the renewal or extension of a contract. [30 ILCS 500/50-39(a)]
No trade secret or other proprietary or confidential information shall be included in any communication reported to the Procurement Policy Board. [30 ILCS 500/50-39(b)]

"Active Procurement Matter" − a procurement process beginning with requisition or determination of need by an agency and continuing through the publication of an award notice or other completion of a final procurement action, the notice or other completion of a final procurement action, the resolution of any protests, and the expiration of any protest or PPB review period, if applicable. "Active procurement matter" also includes communications relating to change orders, renewals or extensions.
"Material Information" − information that a reasonable person would deem important in determining his or her course of action and pertains to significant issues, including, but not limited to, price, quantity and terms of payment or performance.
"Material Argument" – a communication that a reasonable person would believe was made for the purpose of influencing a decision relating to a procurement matter. "Material argument" does not include general information about products, services or industry best practices or a response to a communication initiated by an employee of the State for the purposes of providing information to evaluate new products, trends, services or technologies.

44 Ill. Adm. Code 8.5060 Prohibited Bidders and Contractors

a) Unless otherwise provided, no business shall bid or enter into a contract or subcontract if the business or any officer, director, partner, or other managerial agent of the business has been convicted of a felony under the Sarbanes-Oxley Act of 2002 (PL 107-204) or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 for a period of 5 years from the date of conviction.

c) A person or business that contracts with a State agency to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement.

d) Bids determined to be non-responsive in accordance with this Section are subject to the review and approval of the CPO.

44 Ill. Adm. Code 8.5400 General

All cooperative/joint procurement activities and contracts must be approved by the CPO.

44 Ill. Adm. Code 8.5420 Governmental Joint Purchasing Act Contracts

State and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to use each others' procurement contracts. This authority is governed by this Subpart and the Governmental Joint Purchasing Act.

44 Ill. Adm. Code 8.5440 Non-Governmental Joint Purchasing

a) The CPO may authorize one or more State agencies to enter into joint procurement agreements with non-governmental entities, including, without limitation, consortiums of government entities, not-for-profit entities and commercial entities.

b) If the authorized State agency acts as the lead agency, the procurement shall be conducted in accordance with the Code and this Part.

c) If the authorized State agency acts as a participant in an agreement in which a non-governmental entity acts as lead agency, the State agency shall provide supplementary advertising in the Bulletin, as required by the Code, and shall include in the solicitation by the lead agency Code requirements or, if not possible, these requirements shall be included in the resulting contract.

44 Ill. Adm. Code 8.5460 No Agency Relationship

In any cooperative/joint purchasing situation, each participant must issue its own purchase order, accept its own deliveries and make its own payments. No State agency shall have any obligation to the vendor for payment of orders placed by other participants.

44 Ill. Adm. Code 8.5560 Suspension and Debarment

a) This Part applies to all debarments or suspensions of vendors from consideration for award of contracts under the Code. For the purposes of this Part, all references to "vendors" includes subcontractors. This Part provides for general provisions for suspension and debarment recommendation by CDB and approval by the CPO as authorized by Sections 20-75 and 50-65 of the Code and under the jurisdiction of the CPO. A vendor may be suspended or debarred by the CPO due to acts or omissions that indicate that the vendor lacks integrity and honesty in the conduct of business or the performance of contracts. Acts or omissions that indicate the lack of business integrity and honesty include, but are not limited to:

fraud, bribery, embezzlement, theft, collusion, conspiracy, anti-competitive activity or other misconduct and offenses prohibited by law, whether or not the misconduct or offense is in connection with a CDB contract or subcontract;
making a material false statement in any procurement documents, including the application for prequalification or any forms or affidavits required as part of the procurement or prequalification process;
materially violating any rule or procurement procedure or making a material false statement in connection with any rules or procurement procedures of CDB;
making a material false statement, representation, claim or report respecting the character, quality, quantity or cost of any work performed or materials furnished in connection with a contract or subcontract administered or supervised by CDB;
doing business with a suspended contractor or subcontractor in connection with a contract or subcontract of CDB;
being debarred or suspended by another agency of this State or the United States; or
violation of the Code or this Part or failure to conform to specifications or terms of delivery;

b) CDB may recommend suspension or debarment of a vendor from doing business with CDB, or with respect to certain types of supplies or services. A suspension may be approved by the CPO upon a showing that adequate evidence supports a finding that the vendor has engaged in conduct proscribed by subsection (a).

c) When the CPO agrees cause exists for the suspension or debarment, a notice of suspension or debarment, including a copy of that determination, shall be sent to the vendor by CDB. Notice shall be furnished in writing by personal service or by certified or registered mail. Bids or proposals will not be accepted from the vendor and, if received, will not be considered during the period of suspension or debarment.

d) Upon receipt of notice of suspension or debarment, the vendor may submit a written request for a hearing. The hearing will be conducted by a Hearing Officer who will hear the evidence presented and make a written recommendation to the CPO.

e) The CPO shall issue the final written determination that results from any hearing regarding a suspension or debarment.

f) The CPO may suspend a vendor for a period of time commensurate with the seriousness of the offense, but for no more than 10 years. The suspension will be effective 7 calendar days after delivery of notice to the vendor of intent to suspend or debar, unless a request for hearing is filed. If a request for hearing is filed, suspension shall not become effective until the CPO issues a final written determination. In cases of emergency, suspension shall be effective immediately, subject to scheduling a hearing within 30 days.

g) The CPO may debar a vendor. Debarment is the permanent suspension of a vendor from doing business with the State. A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law. Bids or proposals received from the debarred vendor or proposing the use of a debarred subcontractor will not be considered. The debarment will be effective 7 calendar days after receipt of notice, unless a request for hearing is filed. If a request for hearing is filed, the debarment shall not become effective until the CPO makes a final written determination.

h) In the event of a suspension or debarment, the vendor's prequalification shall be rescinded.

i) The CPO shall determine, after consultation with CDB, whether to void any existing or pending contracts as a result of a suspension or debarment.

j) The CPO shall post the record of suspensions and debarments on his or her web page and on the Bulletin.

k) Suspension or debarment hearings shall be conducted in accordance with Subpart T.

l) CPO shall maintain all records related to this Part, including a master list of all suspensions and debarments. The master list shall retain information concerning suspensions and debarments as public records. These records will be maintained for a period of at least 3 years following the end of the suspension or debarment. This public information may be considered in determining responsibility.

44 Ill. Adm. Code 8.5620 Violation of Statute or Rule

a) Determination that Solicitation or Award Violates Statute or Rule

If CDB determines or suspects that the solicitation or proposed award is in violation of statute or rule, it shall report the circumstances to the CPO or SPO. If the CPO or the SPO finds that the solicitation or proposed award is in violation of statute or rule, he or she shall report the circumstances to CDB and the CPO or SPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if the correction may be legally accomplished.

b) Determination that Contract Violates the Code or this Part

If any contract or amendment to a contract is entered into, or purchase or expenditure of funds is made, at any time in violation of this Part or any other law, the contract or amendment may be declared void by the CPO or may be ratified or affirmed, provided the CPO determines that ratification is in the best interest of the State. If the contract is ratified and affirmed, it shall be without prejudice to the State's right to any appropriate damages.
If, during the term of a contract, the SPO determines that the contractor is delinquent in the payment of debt as set forth in Section 50-11 of the Code, the CPO may declare the contract void if it determines that voiding the contract is in the best interest of the State.
If, during the term of a contract, the CPO learns from an annual certification or otherwise determines that the contractor or subcontractor no longer qualifies to enter into State contracts, the CPO may declare the contract void if it determines that voiding the contract is in the best interest of the State. If the voiding is the result of an action taken by a subcontractor, the contract shall not be void as long as the contractor terminates the subcontract.

c) Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the State agency shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further work shall be performed under the contract. Resolution of any outstanding invoices related to the contract are subject to approval by the CPO.

44 Ill. Adm. Code 8.5700 General

Any hearing conducted by the CPO office, as required by the Code or offered in this Part, shall be conducted in accordance with the procedures within this Subpart.

44 Ill. Adm. Code 8.5710 Informal Process

44 Ill. Adm. Code 8.5720 Hearing Officers

a) The CPO may appoint one or more Hearing Officers to conduct the hearing. If more than one Hearing Officer is assigned to conduct a hearing, one shall be designated as the Chief Hearing Officer.

b) The Hearing Officer may require that the SPO or authorized representative of CDB attend a hearing or be part of the hearing.

c) The Hearing Officer will hear and consider information presented by interested persons and make a recommendation to the CPO regarding the validity of the determination that is the subject matter of the hearing.

d) The Hearing Officer shall be responsible for the orderly conduct of the hearing by exercising discretion in:

Scheduling, starting and ending the hearing;
Setting the order of activities;
Setting reasonable time limits for oral statements;
Resolving any conflicts that may arise during the hearing.

f) The Hearing Officer may change a scheduled hearing date, time or location prior to commencing a hearing by posting a notice outside the hearing room and by posting a notice to the Bulletin. The hearing should be continued to the next practicable date. In setting the next practicable hearing date, the Hearing Officer may take into consideration the schedules of the parties, the impact of delay upon the State and other parties, the hardship to witnesses or the general public, travel and logistical considerations and any other matters that would affect public participation in the hearing.

44 Ill. Adm. Code 8.5730 Notice of Hearing

b) The hearing may be held as soon as the end of the notice period. The notice shall contain the following information and may describe more than one matter to be considered at the same hearing:

The name of the affected parties (e.g., State agency and vendor);
A description of the subject matter;
A justification for the action under review;
Requirements for testifying or submitting written comments;
Hearing contact information;
The date, time and location of the hearing;
A statement that all written comments and oral testimony shall be considered public record and open to review by the public;
A statement of, or reference to, this hearing procedure.

44 Ill. Adm. Code 8.5740 Written Comments and Oral Testimony

Interested parties wishing to comment may do so in writing alone, may testify in person and may submit written comments reflecting the oral testimony.

a) Written Comments

Submission of Written Comments

Written comments are requested by the hearing registration deadline, shown in the Bulletin notice. All written comments received by the hearing date will be considered.

Incorporation of Written Comments

b) Oral Testimony

Advance Registration

Any person who wishes to testify may register with the Hearing Officer by the hearing registration deadline shown in the Bulletin notice to ensure an opportunity to testify. The registration period begins on the date the notice is posted to the Bulletin. Registration information will be stated in the notice. Those who do not register by the hearing registration deadline shown in the Bulletin notice will be heard as time permits and may submit written comments. The Hearing Officer has discretion to limit testimony for the efficiency of the hearing.

Written Summary of Testimony Requested

When extensive or complex oral testimony is reasonably expected, a written summary reflecting proposed oral testimony can be requested by the hearing registration deadline shown in the Bulletin notice to allow the Hearing Officer time to prepare for the hearing. Failure to provide the written summary may result in precluding the testimony from being presented or considered. The Hearing Officer may request a written copy of the oral testimony.

Witness Slip Required

Each person providing oral testimony must complete a witness slip and provide it to the Hearing Officer as instructed.

Duration of Testimony

Each interested party shall have a reasonable period of time to present his or her position based on the complexity of the issue and the press of other business.

c) Sole Source and Emergency Contract Extensions − Supplemental Provisions

The notice, including attachments, as shown in the Bulletin represents the position of CDB and the initial position of the CPO. The Hearing Officer shall have the notice placed into the record. A copy of the notice will be posted outside the hearing room.
The SPO and a representative of CDB shall attend the hearing if any person registers in advance to testify to the sole source or emergency contract extension determination. Attendance may be by video or audio. The SPO and a representative of CDB or the user agency representative shall respond to questions of the Hearing Officer and shall be available for consultation after adjournment of the hearing.
The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative. The Hearing Officer is not required to respond to substantive questions at the hearing nor make commitments regarding the content of his or her recommendation.

d) Suspension and Debarment – Supplemental Provisions

A party who receives notice of suspension or debarment may request a hearing to protest the suspension or debarment action. The hearing will be conducted in accordance with this Section and the following additional provisions shall apply.

A) The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative. The Hearing Officer is not required to respond to substantive questions at the hearing or make commitments regarding the content of his or her recommendation.

B) Both the affected State agency and the vendor affected by a suspension of debarment may, at the discretion of the Hearing Officer, bring in witnesses to present testimony or other evidence regarding the facts or circumstances that led to the determination to suspend or debar.

C) In addition to responding to questions of the Hearing Officer, the witnesses shall respond to questions by the affected vendor if, at the discretion of the Hearing Officer, the questions are allowed.

i) The Hearing Officer may allow questions when the subject matter of the question is relevant and the questioning will not unnecessarily delay the proceedings.

ii) The Hearing Officer may deny questions when the subject matter seeks only to unnecessarily embarrass the witness or delay the proceedings.

e) Recommendation

After conclusion of a hearing, the Hearing Officer shall review CDB's position, any information obtained from public comment (written or oral), the applicable Sections of the Procurement Code, other laws and associated rules and written policies and other information deemed relevant.

f) Decision of the CPO

The CPO shall, after considering the Hearing Officer's recommendation, make a decision in writing (which may be electronic) to uphold or overturn, in whole or in part, the original determination.
The CPO may request additional information from the Hearing Officer, or any other party, including supplemental comments or testimony from the interested parties, prior to making a decision.
The CPO may adopt the recommendation, in whole or in part, or may reject the recommendation, or may write a separate decision.

g) Notice of Decision

The decision of the CPO shall be posted to the Bulletin and issued in writing to the interested parties.

h) Maintenance of Records

A copy of the public notices, any documents presented, any written comments, the recommendation of the Hearing Officer, and any decision of the CPO shall be maintained in the procurement file. Any transcript or recording of a public hearing shall be available, pursuant to the Freedom of Information Act, upon request.

44 Ill. Adm. Code 8.7000 Severability

44 Ill. Adm. Code 8.7010 Government Furnished Property

44 Ill. Adm. Code 8.7015 Inspections

a) Inspection of Plant or Site

The CPO or a designee may enter a vendor's or subcontractor's plant or place of business, subject to any implementing contract provisions, to:

inspect supplies or services for acceptance by the State agency;
audit the books and records of the vendor or subcontractor;
investigate an action to debar or suspend a person from consideration for award of contracts pursuant to the Code;
determine whether the standards of responsibility have been met or are capable of being met;
determine if the contract is being performed in accordance with its terms; and
accomplish any other purpose permitted by law.

b) The presence or absence of an inspector shall not relieve the vendor or subcontractor from any requirements of the contract.

e) Inspection of Construction Projects

On-site inspection of construction shall be performed in accordance with this Section and the terms of the contract.

f) Any confidential information gathered during an inspection can be identified as such in writing and protected from disclosure as allowed.

44 Ill. Adm. Code 8.8001 Purpose

CDB contracts and agreements shall be awarded only to responsible A/E, contractors, construction managers and design-build entities comprised of vendors and are subject to the authority of the CPO. Prospective A/Es, contractors, construction managers and individual vendors that constitute design-build entities must affirmatively demonstrate responsibility, including, when necessary, the responsibility of proposed subcontractors and suppliers. In the absence of information clearly indicating that prospective A/Es, and contractors are responsible, CDB shall make a determination of non-responsibility. Only responsible A/Es, contractors, construction managers and individual vendors that constitute design-build entities shall be prequalified, and only those prequalified shall be permitted to bid on CDB projects. A determination of non-responsibility may be made at any time prior to or after award of a contract.

44 Ill. Adm. Code 8.8005 Policy

a) As a general proposition, except in instances of statutory exceptions, CDB shall award contracts in conformance with the Code. Construction contracts will be awarded to the lowest responsible and responsive bidder. However, award of a contract based on the lowest price alone can be false economy if there is subsequent default, late deliveries or other unsatisfactory performance resulting in additional contractual or administrative costs. While it is important that Government purchases be made at the lowest price, the best interest of the State do not always require an award solely based on price.

b) Construction management services contracts will be awarded in compliance with Article 33 of the Code. A/E contracts will be awarded based on the requirements of the QBS Act. Design-build contracts will be awarded based on the Design-Build Procurement Act.

44 Ill. Adm. Code 8.8015 Prequalification Required

Vendors shall be prequalified. For design-build entities consisting of more than one vendor, each vendor shall be prequalified by CDB. Vendors must be prequalified at least one day prior to any submittal of bids or offers for a specific project and prior to entering a contractual relationship with CDB. Prequalification shall be based upon a determination of responsibility from, but not limited to, the information supplied on a properly completed prequalification application. In special circumstances, including but not limited to small purchases, sole source and emergency procurements, CDB can award a contract to a non-prequalified vendor with approval of the SPO.

44 Ill. Adm. Code 8.8017 Special Projects

a) When CDB determines a construction project is so large or specialized that a special prequalification and responsibility determination is appropriate, CDB may set appropriate standards of acceptability different from those set out in this Part. Other provisions of this Part shall remain applicable.

b) Special Prequalification Provisions

A public notice will be posted on the CDB Procurement Bulletin and may be published in the CPO-GS Procurement Bulletin and/or in the official State newspaper or may otherwise be made available in print describing the project and any special prequalification requirements.
The notice will be published at least 30 days before the date the special prequalification application or the statement of qualifications is due.
Prequalification standards may be revised to be more closely related to the needs or environment of the special project (e.g., required vendor and or personnel experience may be limited to a particular size of project, or to experience in a particular environment such as correctional facility work).

44 Ill. Adm. Code 8.8020 Confidentiality

Documents relating to responsibility determinations shall be maintained by CDB in a separate file and shall remain confidential as records pertaining to occupational registration, except that they shall be subject to complete disclosure to the vendor or design-build entity to which they relate and to units of federal, State or local government, including but not limited to, law enforcement agencies. Nothing in this Section shall be construed to mean that the name of any person or organization filing a complaint or providing information shall be disclosed when the complaint or information is used as the basis for further inquiry into the facts alleged. CDB or the CPO may release to anyone the vendor's prequalification status with CDB. Notwithstanding the foregoing, neither the Performance Evaluations nor the vendor's written responses to them shall be made available to any other person or vendor, except as authorized by Section 7(1)(b)(iii) of the Freedom of Information Act.

44 Ill. Adm. Code 8.8025 Sources for Determining Responsibility

As part of the prequalification process, CDB will make a responsibility determination in accordance with the standards of responsibility specified in Section 8.2046. CDB may utilize information obtained from one or more of the sources listed in this Section. In evaluating the information, greater consideration shall be given to the most recent projects and projects with CDB.

a) Prequalification and Renewal Application Forms

New applications shall, at a minimum, require:

A) Completed application form.

B) The name of each key person and that person's respective ownership.

D) Relevant work experience.

E) Evidence of any required bonding capacity meeting CDB criteria.

F) Adherence to all appropriate statutory and regulatory requirements, including, but not limited to, those of DFPR, SOS and DHR.

G) Satisfactory work history and references. References obtained may be verified and documented by the following methods:

i) Telephone reference checks.

ii) Reference questionnaire.

H) The applicant's e-mail address and phone and fax numbers.

Renewal applications shall, at a minimum, require:

A) The information set out in subsection (a)(1).

B) Adherence to all applicable rules and resolutions.

C) Satisfactory CDB work and performance history, which may be documented through evaluations prepared on both current and past CDB projects by the following:

i) CDB staff.

ii) Architects/engineers and consultants.

iii) Using agencies.

iv) Other contractors, subcontractors and suppliers.

Application Updates

Vendors shall have an affirmative duty to update significant changes to information within 10 days after occurrence. Failure to disclose as required may lead to action on prequalification. (See Section 8.8055(c).) Significant changes include, but are not limited to:

A) Changes in federal employee identification number, busines ownership, or corporate structure, such as sole owners and partnerships;

B) Change of name;

C) Change of address;

D) Change or loss of approved project personnel;

E) Change or initiation of hearing in licensure or registration status with the Department of Financial and Professional Regulation;

F) Change in minority/female owned vendor status;

G) Loss of SOS "goodstanding" status;

H) Suspension or debarment by another governmental agency;

I) Decrease by more than 25% in bonding capacity or filing of bankruptcy;

J) Filing of formal criminal charges against a vendor or its officers, owners or employees;

K) Contract terminations.

b) Other Government Entities

CDB may conduct history reference checks by contacting federal, State or local governmental entities.

c) Other Sources

CDB may conduct reference checks or gather relevant information from any other source in order to determine responsibility. Acceptable sources may include, but are not limited to:

Surety/bonding companies;
Financial institutions;
Periodicals;
Newspapers;
Court records;
Dun and Bradstreet reports;
Audited financial statements;
Any type of public record.

d) Previous Employment History

For any newly organized vendor or a vendor with a limited work history, CDB may conduct individual performance reference checks on any or all personnel.

e) Satisfactory CDB Performance History

CDB may review documentation of current and past work and performance history, including adherence to CDB's rules, resolutions and procedures. This documentation includes, but is not limited to, performance evaluations prepared by CDB, user agencies or contractors.
CDB shall evaluate the performance of each vendor and design-build entity upon completion of a contract. Evaluations shall be made available to the vendor and the vendor may submit a written response, with the evaluation and response retained solely by CDB. The evaluation and response shall not be made available to any other person or vendor and is exempt from disclosure under the Freedom of Information Act. The evaluation shall be based on the terms identified in the construction manager's contract.

f) Additional Information

CDB may request additional information at any time.

44 Ill. Adm. Code 8.8030 Licensing and Registration Actions

a) Prequalified vendors and design-build entities shall notify CDB in writing within 10 working days when the Department of Financial and Professional Regulation or any other State entity initiates proceedings to refuse to renew or to suspend or revoke a registration, license, certification or prequalification status of any individual or vendor, or to impose any other disciplinary sanction.

b) Upon notification, prequalification will be reviewed and appropriate action taken under Subpart R. In addition, if it is found that notice was not provided as required, CDB may take action under Subpart R.

44 Ill. Adm. Code 8.8035 Trade Codes and Profile Codes

a) Vendors shall indicate on the application form the specific trade or profile codes within the area of practice in which the vendor has specific areas of knowledge, expertise or experience. The applicant may indicate only those codes consistent with any licensing requirements.

b) This information may be used by CDB in the selection of vendors for projects. It does not relieve the vendor from providing the same or additional information in the statement of qualifications submitted for a specific project. CDB may request additional information during the prequalification process to verify that the vendor possesses the required knowledge, expertise or experience to be considered for work in any code. CDB may deny prequalification in a particular code during the prequalification process if the vendor fails to demonstrate its knowledge, expertise or experience to CDB's satisfaction.

c) Demonstration of knowledge, expertise or experience in a code may be required to be supported by licenses or certification issued by governmental agencies such as the Department of Public Health, Illinois Historic Preservation Agency, etc.

d) CDB's decisions regarding the types of codes granted shall not be subject to hearing procedures.

44 Ill. Adm. Code 8.8040 Prequalification by Office Locations

a) Vendors and design-build entities shall list all office locations on the prequalification application for which it seeks prequalification. These office locations may be business subsidiaries, divisions, branches, etc. CDB reserves the right to evaluate each office based on the criteria set forth in this Part. Any offices not listed on applications shall not be deemed prequalified.

b) Prequalification shall not apply to any other business location or entity solely because of an ownership relationship.

44 Ill. Adm. Code 8.8045 Processing of Prequalification and Responsibility and Renewal Applications

a) New bidders and offerors and bidder and offerors nearing the prequalification expiration date must complete a prequalification and responsibility application, including the Financial Disclosure and Potential Conflicts of Interest forms required under Section 50-35 of the Code.

b) Processing of prequalification and responsibility applications and renewals by CDB may require up to 45 days when the application information is complete and satisfactory and references are responsive.

c) Applications for renewal will be sent approximately 60 days before the expiration of current prequalification and are available electronically on CDB's internet site at www.cdb.state.il.us. Vendors who do not receive an application are responsible for obtaining one at least 45 days prior to expiration. Vendors will be notified when information is incomplete or unsatisfactory.

d) Unless otherwise specified in writing by CDB, the term of prequalification shall be three years for contractors and 2 years for A/Es and construction managers. A shorter term of prequalification can be granted. When prequalification is granted, the vendor will be notified in writing of the expiration date, which will also be entered on CDB's electronic program. CDB may grant a shorter term of prequalification by agreement with the vendor when a determination is made that a shorter period is justified. CDB may, in its discretion, grant a longer period of prequalification when deemed appropriate in light of recent and relevant satisfactory project performance. Updated or new information, including the term of prequalification, will be entered on CDB's electronic program weekly. The electronic program will be capable of, among other things, sorting contractors by trade to produce lists of vendors in various trades. At the beginning of each month, a list of vendors whose prequalification expires in approximately 60 days will be generated.

e) Applications may be sent to CDB electronically.

f) CDB shall review and evaluate each application received, which may include one or more of the following actions:

Reviewing to determine whether the application is filled out in accordance with the instructions provided and is accurate and complete.
Contacting references or any other possible sources of pertinent information.
Requesting additional information from the applicant.
Reviewing CDB contractor performance evaluations.
Reviewing Financial Disclosures and Potential Conflicts of Interest and State Board of Elections Registration.
Meeting with the applicant at the request of CDB or the applicant.

g) CDB shall deny prequalification to any vendor that has not affirmatively demonstrated its responsibility. CDB's determination of responsibility for prequalification shall be final.

44 Ill. Adm. Code 8.8050 Actions Affecting Prequalification

At any time, the CPO may consider whether action should be taken concerning prequalification. Actions that may be taken include one or more of the following:

a) Interim or Emergency Suspension or Modification

The CPO may summarily suspend or modify a vendor's prequalification, [20 ILCS 3105/16]. A hearing, if requested by the vendor, shall be held within 30 days.

b) Debarment

The CPO may debar a vendor to exclude it from bidding for CDB contracts as authorized in this Part or by statute. The period of debarment shall be not less than 5 years and may be permanent when warranted or as authorized by law. The debarment will be effective 7 calendar days after receipt of notice unless a request for hearing is filed. If a request for hearing is filed, suspension shall not become effective until the CPO makes a final written determination.

c) Modification of Ability to Submit a Bid or Offer

The CPO may modify or limit a prequalification as appropriate, including, but not limited to, one or more of the following:

Limiting the dollar amount or project size for which a bid or offer can be submitted for a specified period of time, or until a current contract is substantially or fully complete.
Limiting the number of CDB contracts a vendor may enter into for a specified period of time, or until a current contract is substantially or fully complete.
Limiting the aggregate dollar amount of contracts the vendor may enter into, considering both public and private contracts.
Imposing limits set forth in this subsection (c) pending performance on the vendor's next CDB contracts, in instances in which the vendor has no current CDB contracts.

d) Conditional Prequalification

The CPO may condition prequalification (which may be otherwise limited) on the vendor's successful utilization of a management plan, evaluations, conferences or other methods designed to achieve satisfactory performance or compliance with contract requirements.

e) Suspension

The CPO may suspend or disqualify a vendor temporarily from contracting with CDB, for a period of time up to 5 years. The contractor vendor's failure to timely pursue administrative action, as provided by this Part, shall constitute consent of the vendor to the CPO's action. The suspension will be effective 7 calendar days after receipt of notice unless a request for hearing is filed. If a request for hearing is filed, suspension shall not become effective until the CPO makes a final written determination.

44 Ill. Adm. Code 8.8055 Causes for Suspension, Debarment, Modification of Ability to Bid or Offer, or Conditional Prequalification

The CPO may determine a vendor is not responsible and suspend, debar or otherwise modify or issue a conditional prequalification based upon one or more of the following:

a) Failure to satisfactorily perform work on CDB contracts, private contracts, or other governmental contracts.

b) Breach of the terms of a CDB contracts, private contract, or other governmental contract.

c) Making false or misleading statements, or failing to disclose or update significant information in connection with CDB procedures or documents, including but not limited to the prequalification application.

d) Violation of civil or criminal federal or State statutes or administrative rules and regulations. In the case of criminal violations, indictment or filing of formal charges by information (complaint) shall constitute adequate evidence for a determination of non-responsibility.

e) Financial instability, which may be evidenced by bankruptcy, failure to timely pay subcontractors, difficulty in obtaining acceptable bonding, attempts to assign contract proceeds, or other indications of serious business management deficiencies.

f) Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards.

g) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or conduct indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a vendor, construction manager or design-build entity.

h) Suspension, debarment, or limits on bidding or offering on contracts by any other CPO or other governmental body.

i) Failure to be properly licensed or registered with the Department of Financial and Professional Regulation (DFPR) or any other State licensing, certification or registration entity, being the subject of disciplinary sanctions by such an entity, or the subject of initiation of proceedings by such an entity in order to refuse to renew, suspend or revoke the registration or license, or to impose any other disciplinary sanction.

j) Excessive requests for bid withdrawals on CDB projects.

k) Any other cause of so serious or compelling a nature that it affects the responsibility of a contractor.

l) For Design-Build Entities

Any action the CPO or CDB takes with regard to suspension, debarment, modification of prequalification, or conditional prequalification of a vendor in regard to its actions as a design-build entity or as a design consultant or subcontractor to a design-build entity may also apply to its prequalification to do other (non-design-build) work with CDB, unless CDB specifically restricts its action to apply to the entity's prequalification to participate in design-build projects, in accordance with Section 8.8070.

44 Ill. Adm. Code 8.8057 Failure to Satisfactorily Perform Work On, or Breach of the Terms Of, Cdb Contracts, Private Contracts or Other Governmental Contracts

CDB may request the CPO take action upon prequalification for the vendor's failure to satisfactorily perform work on, or breach of the terms of, CDB contracts, private contracts or other governmental contracts, such as, but not limited to, one or more of the following:

a) For Contractors:

Failure to timely submit proper post-award documents, such as, but not limited to, bonds, certificates of insurance and MBE/FBE subcontractor/supplier certifications.
Failure to attend or to be properly prepared for pre-construction meetings, pay/progress meetings, or other required meetings set by the project A/E, CDB or the coordinating contractor.
Failure to timely provide schedule submittals or shop drawings.
Failure to meet the project schedule for any reason reasonably within the control of the contractor.
Failure to provide an acceptable quality of supervision.
Failure to provide a supervisor authorized to make timely field decisions on behalf of the vendor.
Failure to provide sufficient manpower.
Failure to timely provide acceptable quality equipment, labor, materials, installation, subcontractors or suppliers, including the failure to provide licensed personnel when necessary.
Failure to keep updated as-builts in the field.
Failure to follow directives provided by the project A/E or CDB within the scope of the contract documents.
Failure to cooperate with other parties to the project to timely resolve project problems that arise.
Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards.
Failure to provide timely and appropriate pay request documents, including, but not limited to, the Contractor's Schedule of Values form (Development), Contractor's Affidavit and Sworn Statement form (CASS), and lien waivers.
Failure to timely submit Requests for Proposals and Change Order documents (RFP/CO), including, but not limited to, adequate documentation of actual direct costs and pricing within conventional industry parameters for public contracts.
Failure to timely complete punch list items or contract close-out documents.
Failure to demonstrate good faith efforts to meet Fair Employment Practices (FEP) requirements and MBE/FBE goals.

b) For A/Es, Construction Management Companies and Design-Build Entities:

Failure to timely submit post-award documents, such as, but not limited to, bonds, certificates of insurance and MBE/FBE certifications.
Failure to timely submit required documents and drawings, including record drawings, according to the project schedule, causing a delay in the commencement, completion or close out of a project.
Failure to adequately or timely respond to technical review comments and directions.
Failure to adhere to contractual document requirements.
Failure to adequately or timely notify CDB of project problems or failure to cooperate with other parties to the project to timely resolve problems.
Failure to timely or adequately resolve design issues.
Failure to timely or adequately submit budget and estimating documents.
Failure to meet quality standards of the applicable profession or required codes and standards for a particular type of construction.
Failure to provide proper field administration and observer services.
Failure to provide proper personnel or proper and timely responses to requests for information in the field.
Failure to provide timely and adequate record drawings.
Failure to meet contractual design schedule dates.
Failure to timely process change orders and contractor pay requests.
Failure to follow directives from CDB within the scope of the contract documents.
Failure to cooperate with other parties to the project to timely resolve project problems.
Failure to meet the project schedule for any reason reasonably within its control.
Failure to attend or to be properly prepared for project meetings.
Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards that results in paper delays, project delays, or the extraordinary expenditure of CDB resources.
Failure to submit proper pay or modification requests, in accordance with the contractual provisions, with adequate documentation of costs and pricing within conventional industry parameters for public contracts.
Violation of the Illinois Procurement Code.
Failure to conform with the requirements of a design-build agreement.
Any other cause of so serious or compelling a nature that it affects the vendor's responsibility.

44 Ill. Adm. Code 8.8060 Interim or Emergency Suspension or Modification Pursuant to Section 16 of the Capital Development Board Act

a) CDB may suspend or modify a vendor's prequalification without a prior hearing, or administrative procedure, for one or more of the following causes:

The public interest, safety or welfare requires the suspension or modification.
An event or series of events, including, but not limited to:

A) The filing of an indictment or of formal charges by information (complaint) charging the vendor or a key person with the vendor with a crime.

B) Suspension or modification of a license or prequalification by another State agency, federal agency or other branch of government after hearing or by agreement.

C) Failure to comply with applicable laws, including, but not limited to, the BEMFD Act, the Prevailing Wage Act, the Steel Products Procurement Act, and requirements relating to occupational licensing.

D) Material breach of a contract, including, but not limited to, one or more of the causes set forth in Section 8.8057.

E) Failure to satisfactorily perform work on, or breach of, a CDB contract, including, but not limited to, one or more of the causes set forth in Section 8.8057, when:

i) The issue has been brought to the attention of vendor management in writing;

ii) CDB construction administration has met with vendor representatives and discussed the issue;

iii) CDB conveys to the vendor what action or nonaction is necessary and in accordance with the contract documents;

iv) CDB has initiated contractual remedies as may be appropriate, such as, but not limited to, stopping the work, rejecting the work, carrying out the work, or ordering acceleration of the work; and

v) The vendor willfully and unreasonably refuses to comply or to obtain subcontractors, personnel or other resources that would enable it to comply.

b) When prequalification is suspended or modified pursuant to this Section, the CPO and the vendor will be notified in writing and, within 30 days after the notice, CDB will commence administrative procedures under Subpart T.

c) When prequalification is suspended or modified pursuant to subsection (a)(2)(E), if the vendor cures the situation within 30 days after the notice, the suspension or modification may be rescinded by written notice.

44 Ill. Adm. Code 8.8065 Denial of Prequalification

a) This Section is applicable to vendors who are one of the following:

First-time applicants for CDB prequalification.
Vendors who sent a renewal application that arrived at CDB after the prequalification expiration date or could not reasonably be processed before the expiration date.
Vendors who sent a renewal application that was incomplete or insufficient, so that CDB could not reasonably process the application before the expiration date.

b) Vendors categorized in subsection (a) will be considered to be new applicants to CDB. In the event that CDB denies prequalification or grants a conditional or modified prequalification, the vendor may request administrative procedures under Subpart T, but the vendor shall not be entitled to an administrative hearing.

44 Ill. Adm. Code 8.8070 General

a) Suspension, debarment, nullification of prequalification, modification of prequalification, issuance of conditional prequalification, or denial of prequalification by CDB or the CPO is applicable to a vendor's direct contracts with CDB and to subcontracts on CDB projects, unless otherwise determined under Section 8.8090.

b) Suspension, debarment, nullification of prequalification, modification of prequalification, issuance of conditional prequalification, or denial of prequalification by CDB or the CPO is also applicable to a design-build entity's separate prequalification as an A/E or contractor with CDB, unless the circumstances are directly related to the design-build process and not to the type of performance provided as an A/E or contractor. In these instances, CDB will issue a written determination supporting the action.

44 Ill. Adm. Code 8.8072 Violation of Cdb Order

When a vendor works as a subcontractor on a CDB project in violation of any provisions of this Part and, continues to submit bids or offers on CDB projects when prohibited, or otherwise violates terms or conditions imposed by CDB, the CPO may extend the term of suspension, debarment, nullification, modification, or conditional prequalification, or otherwise suspend, limit or condition the ability to submit bids or offers on contracts with CDB. If a vendor subject to a CPO order suspending or debarring the vendor, or nullifying or modifying prequalification, or making prequalification conditional, or denying prequalification and the vendor violates the order in any manner, including, but not limited to, continuing to make submittals on CDB projects, the CPO may extend the term of suspension, debarment, nullification, modification or conditional prequalification or otherwise limit or condition the ability to make submittals on contracts with CDB.

44 Ill. Adm. Code 8.8075 Nullification of Prequalification

When CDB determines that a contractor has knowingly made a material misrepresentation in its application for prequalification, the contractor may not re-apply to CDB for a period of 3 years.

a) When the contractor has not previously applied to CDB, or failed to reapply, the 3 year period shall begin on the date of the submittal of the application.

b) When the contractor has been determined to be responsible in error, the 3 year period shall begin on the date the current responsibility determination was made.

c) The CPO will notify the contractor of the nullity. The contractor may, within 30 days after notification, submit a written explanation with supporting documentation for the CPO's review.

d) The CPO may cancel awards or terminate any contracts awarded that were based upon the application with misrepresentations.

e) A material misrepresentation is made by knowingly submitting any untrue, misleading or deceptive information, or document containing such information, or by the concealment, suppression or omission of any information, in or from an application, that causes CDB to act differently than it would have if it had known the undisclosed or true information.

44 Ill. Adm. Code 8.8080 Denial of Award of Contract

Notwithstanding any other provisions of this Part, if the CPO finds a vendor non-responsible due to one or more causes set out in Section 8.8055, the CPO may deny the vendor the award of a contract.

44 Ill. Adm. Code 8.8082 Debarment

The CPO may debar a vendor to exclude it from bidding on CDB projects as provided in this Part or provided by statute. The CPO will consider debarment in cases so serious and egregious in nature that a loss in excess of 5 years up to a permanent loss of bidding privileges may be warranted. In addition to the causes listed in Section 8.8055, causes for debarment may include, but are not limited to, multiple or repetitive criminal convictions or multiple non-responsibility determinations. Actions to debar a vendor shall not prevent CDB or the CPO from taking any other action under this Part. Following a period of debarment, when a vendor submits a prequalification application to CDB, the application shall be deemed to be a first-time application rather than one for renewal.

44 Ill. Adm. Code 8.8085 Reapplication for Prequalification

When a vendor submits a prequalification application to CDB following a denial, or during or following a period of debarment, suspension, nullification, modification of ability to bid, or conditional prequalification, the vendor must affirmatively demonstrate its responsibility, including demonstrating that the reason for the denial, or imposition of suspension, debarment, nullification, modification or condition, has been remedied.

44 Ill. Adm. Code 8.8090 Extension of Cpo Action

The effect of action imposed by the CPO will extend to all affiliates, branches, subsidiaries, divisions or parent vendors of the vendor, and to any vendor in which the contractor or its key persons have a legal or beneficial interest, unless the CPO determines otherwise in writing.

44 Ill. Adm. Code 8.8092 Effect on Current Contracts

Current CDB contracts may be terminated when a contractor is determined to be non-responsible and it is in the public interest to do so, whether or not the non-responsibility has a direct connection with the current contract. Contracts may be terminated with or without further action on the vendor's prequalification.

44 Ill. Adm. Code 8.8095 Basis of Decisions

The CPO shall make determinations, as appropriate, concerning the substance of a vendor's business as opposed to its form, and base its decisions on the substance. When a vendor attempts to evade the effects of a possible or actual finding of non-responsibility by changes of address, multiple addresses, changes in personnel or their titles, formation of new companies, or other devices, the CPO may take action pursuant to Section 8.8050 and Subpart R.

44 Ill. Adm. Code 8.8098 Settlement

Notwithstanding any provision of this Part, the parties to any contested matter concerning contractor prequalification may, at any time, enter into an agreement to resolve prequalification issues by settlement.

Chapter V Department of Central Management Services

Part 10 Business Enterprise Program: Contracting with Businesses Owned and Controlled by Minorities, Females and Persons with Disabilities

44 Ill. Adm. Code 10.05 Introduction

The Business Enterprise for Minorities, Females, and Persons with Disabilities Act [30 ILCS 575] (Act) establishes a goal that at least 20% of contracts awarded by State agencies subject to the Act be awarded to businesses owned and controlled by minorities, females, or persons with disabilities. The Act also authorizes development and use of a procedure to certify firms eligible for the benefits of the Act, allows for certain special treatment in contracting with certified businesses, and establishes a Council, Secretary and, in the Department of Central Management Services, a program function to implement and oversee the Act.

History

Source: Amended at 36 Ill. Reg. 10717, effective July 6, 2012

44 Ill. Adm. Code 10.10 Definitions

"Act" means the Business Enterprise for Minorities, Females, and Persons with Disabilities Act [30 ILCS 575].

"Department" means the Illinois Department of Central Management Services.

"BEP" or "Business Enterprise Program" means the activities conducted by the Council, Secretary and Department of Central Management Services pursuant to the Act.

"BEP Eligible" or "BEP Eligible Vendor" means an MBE, FBE or PBE.

"Council" means the public body established by the Act to implement and oversee implementation of the Business Enterprise Program.

"Eligible Group Member" means a person who meets the eligibility requirements set forth in Section 10.40(a).

"FBE" means a business owned and controlled by females in accordance with the requirements of the Act and this Part.

"MBE" means a business owned and controlled by minorities in accordance with the requirements of the Act and this Part.

"PBE" means a business owned and controlled by persons with disabilities in accordance with the requirements of the Act and this Part.

"Public Institutions of Higher Education" has the meaning provided in Section 2(A)(7) of the Act.

"Racial, Gender or Disability-Based Discrimination" means specific, documented instances of racial, gender or disability-based bias in the utilization of FBE, MBE or PBE businesses for State contracts compared to the availability of these businesses in the market. Generalized allegations of societal and/or industry discrimination are not sufficient, on their own, to satisfy this standard.

"Secretary" means the individual appointed to act as Secretary to the Council and to be manager of the BEP Division of the Department of Central Management Services.

"Sheltered Market" means a procurement procedure in which certain State contracts are selected for businesses owned and controlled by minorities, females, and persons with disabilities on a competitive bid or negotiated basis [30 ILCS 575/8b].

"State Agency" has the meaning provided by Section 2(A)(6) of the Act.

"State Contract" has the meaning provided by Section 2(A)(5) of the Act.

History

Source: Amended at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.20 Goal

The Council shall, by resolution, establish the contracting goal. In accordance with the Act, not less than 20% of the total dollar amount of State contracts, as defined in this Part, shall be the goal for awarding contracts to MBEs, FBEs, and PBEs.

History

Source: Amended at 36 Ill. Reg. 10717, effective July 6, 2012

44 Ill. Adm. Code 10.21 Contracts and Expenditures Subject to the Goal

All contracts funded in whole or in part with funds appropriated by the General Assembly are subject to the goal unless exempted elsewhere in this Part.

44 Ill. Adm. Code 10.22 Categories of Contracts and Expenditures Exempt from Goal

a) Contracts shall be exempt from the goal if:

the contract is subject to federal reimbursement; or
receipt of funds for a contract would be jeopardized by including them in the Program.

b) The Council has determined, pursuant to Section 7(2) of the Act, that the following categories of contracts and expenditures, including but not limited to the detailed expenditure accounts listed within each category, are exempt from the goal. This determination was made based on the best information available that these categories do not represent procurement opportunities for MBEs, FBEs or PBEs, or that there are not sufficient MBEs, FBEs or PBEs to ensure competition and an expectation of reasonable prices. The detailed expenditure accounts have the same meaning as used by the State Comptroller (see Statewide Accounting Management System manual. A copy of this manual is available in the Secretary's office).

Contracts between, or within, State agencies that do not include payments to private vendors:

A) University Central Data Processing Services;

B) University Central Plant Services;

C) University Central Supply Services;

D) University Central Telecommunication Services; and

E) University Central Transportation Services.

Contracts with or payments to other governmental entities:

A) Payments to Local Governments for Employees;

B) Reimbursements to Governmental Units;

C) Postage and Postal Charges;

D) Operating Taxes, Licenses and Fees;

E) Revenue Stamps;

F) Taxes and Transfers;

G) Fire Protection Services;

H) Shared Waterway Agreements; and

I) Shared Revenue Payments.

Employee wages, salary and other payroll and employee related costs:

A) Payments into Pension Funds;

B) Pensions, Annuities and Benefits;

C) Purchase of Investments;

D) Employee Tuition Fees;

E) Social Security;

F) Retirement;

G) Unemployment Compensation Payments;

H) Legislative Staff Services;

I) Registration Fees and Conference Expenses;

J) Workers' Compensation Commission Awards or Settlement Awards for Injured Employees; and

K) Awards, Benefits and Treatment Expenses − Injured Employees.

Payments of money to individuals or groups in the nature of reimbursement, settlement, entitlement, or assistance:

A) Assistance Payments to Individuals;

B) Awards and Grants to Students;

C) Burial Expense Awards;

D) Community Services for DHS-MH & DD and Chemically Dependent;

E) Court of Claims Awards;

F) Reimbursement for Living Expenses for State Wards Outside State Institutions;

G) Tuition, Training Supplies and Equipment for Aided Persons;

H) Lottery Prizes;

I) Interviewee Expenses; and

J) Tort Claims.

Debt retirement and refunds of money:

A) Debt Retirement;

B) Loans; and

C) Refunds.

Grants:

A) Grants for Educational Purposes − School Districts;

B) Grants for Educational Purposes − Higher Education;

C) Grants to Local Governments (other);

D) Grants to Non-Profit Organizations;

E) Grants to Other State Agencies; and

F) Grants to or on behalf of Veterans and their Dependents.

Public utility contracts and payments:

A) Electricity;

B) Gas (Natural Gas);

C) Telecommunications (regulated service only);

D) Water; and

E) Utilities (Other).

Real estate acquisition:

A) Land (Relocation Costs);

B) Land, Relocation Costs (Highways);

C) Land, Relocation Costs (Waterways);

D) Land, Rights of Way and Easements;

E) Land, Rights of Way and Easements (Highway); and

F) Land, Rights of Way and Easements (Waterways).

Miscellaneous contracts and expenditures:

A) Association Dues; and

B) Periodical Subscriptions.

c) Prior to the end of each fiscal year, the Secretary shall investigate the categories of contracts and expenditures to determine whether, based on the best information available, these categories continue to represent procurements in which there are no opportunities for MBEs, FBEs or PBEs, or that there are not sufficient MBEs, FBEs or PBEs to ensure competition and an expectation of reasonable prices. The Secretary shall present the determination to the Council, and the Council shall either continue with the current categories or change the categories. The categories shall remain as stated in this Part until the Part is amended to change the categories.

History

Source: Amended at 36 Ill. Reg. 10717, effective July 6, 2012

44 Ill. Adm. Code 10.23 Council Review of Agency Requests for Specific Exemptions

a) Any State agency may request that the Council exempt specific contracts or expenditures from the goal. The agency must show, based on the best information available, that the particular contract does not represent a procurement opportunity for MBEs, FBEs or PBEs, or that there are not sufficient MBEs, FBEs or PBEs to ensure competition and an expectation of reasonable prices. The agency must provide a copy of any Invitation for Bids, Request for Proposals or other solicitation information issued, the amount of anticipated expenditures that would be exempt and the total agency appropriation. The documentation must show the agency engaged in a diligent effort to identify and solicit BEP eligible vendors, and the results of that effort.

A diligent effort requires, at a minimum, solicitation of appropriate vendors from the master vendor list maintained by the Council and advertising in appropriate media.
Whether the price quoted is reasonable shall be determined based upon current market prices, historic prices, prices received by other agencies for similar supplies or services, and the policy of the Business Enterprise Act to promote businesses owned by minorities, females and persons with disabilities.

b) The Council shall exempt specific contracts from the goal if, after reviewing the information provided by the agency, it determines that the agency did make a diligent effort to contract with MBEs, FBEs and PBEs and that the price was not reasonable. Any action by the Council to approve or deny a request for specific exemption shall be by resolution passed by the Council.

44 Ill. Adm. Code 10.24 Goal Measurement

a) The goal shall be measured on a full fiscal year basis. The goal shall be measured against the total dollar amount of expenditures subject to the goal. Expenditures not covered are those described in Sections 10.22 and 10.23.

b) Each user agency's expenditures, whether against contracts established by the user agency or against contracts established on behalf of a user agency by another agency such as the Department of Central Management Services, shall be included in the user agency's goal attainment statistics.

History

Source: Amended at 25 Ill. Reg. 4831, effective March 19, 2001

44 Ill. Adm. Code 10.25 Subcontracting

An agency may satisfy its goal, in whole or in part, by counting expenditures made by State vendors to certified BEP vendors as subcontractors.

44 Ill. Adm. Code 10.30 Agency Compliance

a) Each agency shall submit a compliance plan annually. The Council shall establish the format and timetable for submission of the plan. The Council shall approve the plan if it meets the requirements of the Act and this Part.

b) The Council, on its own motion or upon request of a purchasing agency, shall recommend ways in which the purchasing agency may reach its goal. Upon a finding by the Council that a purchasing agency's compliance plan is insufficient to reach the agency's goal, the Council shall recommend ways in which the agency can reach its goal. Such recommendations may include, but shall not be limited to:

using stronger and better focused solicitation efforts to obtain more BEP eligible businesses as potential sources of supply;
division of job or project requirements, when economically feasible, into smaller, more manageable, tasks or quantities;
elimination of extended experience or capitalization requirements when programmatically feasible; and
identification of specific proposed contracts as particularly attractive or appropriate for participation by BEP eligible businesses.

c) If the compliance plans or quarterly reports indicate the agency's goal will not be reached, the Council may request the agency head to appear before the Council and explain the agency's non-compliance. If the Council determines the agency is not making a serious effort to reach the goal, the Council will prepare a report for submission to the Governor with recommendations for remedial action.

44 Ill. Adm. Code 10.35 Professional and Artistic Contract Reporting

a) Agencies shall give written notice to the Secretary of procurement opportunities for professional and artistic services (as defined in Section 1-15.60 of the Illinois Procurement Code and applicable Sections of the Chief Procurement Officer for General Services Standard Procurement Rules, 44 Ill. Adm. Code 1).

b) The notice shall include the agency name and address; contact person; contract reference number; anticipated start date; length of the contract; services to be provided; special requirements; and dollar value. Notice may be given on the form available from the Secretary. Notice may be mailed, hand delivered, sent by fax, or transmitted in electronic form.

c) Upon receipt of the notice, the Secretary shall have at least 14 days to provide the agency with the names of certified vendors who might be interested in the contract. The agency shall consider all certified vendors referred by the Secretary within that 14 day period.

d) Notice to the Secretary is not required if the procurement is advertised in the Illinois Procurement Bulletin or if the agency considers all certified vendors that provide the needed service. Notation to that effect shall be maintained by the agency in its file.

History

Source: Amended at 25 Ill. Reg. 4831, effective March 19, 2001

44 Ill. Adm. Code 10.40 Program Eligibility

a) Businesses owned and controlled by individuals in the following eligible groups may submit applications for certification:

African American – a person having origins in any of the black racial groups in Africa.
Hispanic – a person of Spanish or Portuguese culture with origins in Mexico, South or Central American or the Caribbean (regardless of race).
American Indian or Alaskan Native – a person having origins in any of the original people of North America.
Asian American – a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent or the Pacific Islands.
Female – a person who is a citizen or lawful, permanent resident of the United States, and who is of the female gender.
Person with a disability.

b) MBE, FBE and PBE refer to for-profit enterprises regardless of form of organization (sole proprietorship, partnership or corporation). However, not-for-profit entities that meet the definition of a sheltered workshop for the disabled in accordance with Section 45-35 of the Illinois Procurement Code [30 ILCS 500] will also be classified as PBE.

44 Ill. Adm. Code 10.50 General

a) The certification process verifies that the business is owned and controlled by BEP eligible individuals in accordance with requirements of the Act and this Part. The Secretary to the Council will oversee the certification process. The certification procedure consists of the requirements and procedures outlined in this Section.

b) The Secretary will certify a business firm that meets the requirements of the Act and this Part. All certifications, new and existing, shall be valid for a period of 7 years from the effective date of the certification, subject to annual confirmation.

c) Only certified businesses are eligible for the benefits of the Program. Agencies may count only those expenditures with a certified business or certified business subcontractor toward meeting the goal.

d) A business owned and controlled by minority females shall designate whether the business will be certified as FBE or MBE.

e) A business owned and controlled at least 51% by any combination of minorities, females and persons with disabilities shall be counted as a business owned and controlled by the eligible group that has the largest percentage of ownership. When there is a tie, the business shall select the eligible group classification.

f) A business owned and controlled by a person with a disability, or by an entity that is a not-for-profit agency for the disabled, is a PBE certified business regardless of the ethnicity or gender of the owner or owners, or of the governing board.

g) These classifications facilitate consistent accounting of agency contract awards to businesses covered by the Act. These classifications do not preclude such businesses or not-for-profit agencies from receiving any contract that may be awarded under the Illinois Procurement Code [30 ILCS 500] or other applicable law.

History

Source: Amended at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.55 Program Information

a) The Secretary, on behalf of the Council, shall compile a list of businesses certified under the Act and may compile and maintain other information regarding the program, including general vendor lists.

b) The list will contain the name, address, telephone and facsimile numbers, e-mail address, type of certification (MBE, FBE or PBE) and business classification (e.g., accounting or furniture sales) of certified businesses.

c) The list shall be available to the Chief Procurement Officers and State Purchasing Officers established under the Illinois Procurement Code, and to other interested State agencies for use in procurements under the Illinois Procurement Code and other procurement laws.

d) The list of certified businesses shall be available to the public. This list and other information shall be provided electronically via the Business Enterprise Website. If a hard copy is requested, there shall be a fee to cover cost of compilation, maintenance, publication and distribution.

History

Source: Amended at 31 Ill. Reg. 4023, effective February 22, 2007

44 Ill. Adm. Code 10.60 Application

The business seeking certification must complete a BEP application package. The Secretary may conduct a personal interview with the applicant that may include a telephone interview and/or an on-site visit. Additional on-site visits may be conducted at any time during the life of a certification to verify continued eligibility for the Program.

44 Ill. Adm. Code 10.62 Time to Determine Eligibility

The Secretary shall contact all applicants seeking certification within 60 days after receipt of the application, and shall grant certification or deny certification. The Secretary shall contact all applicants regarding any requests for additional or clarifying information within 15 days after receipt of the application.

History

Source: Amended at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.63 Certification by Other Certifying Entities

a) The Council will accept a certification by another entity in Illinois, such as a local government or vendor association. The other entity must have certification requirements and procedures equaling or exceeding those in the Act and this Part.

b) The Secretary shall investigate requirements and procedures of other certifying entities and shall report to the Council the names of those certifying entities whose certifications can be accepted.

The other entities must agree to notify the Secretary should their requirements or procedures change in any material way. The Secretary shall periodically meet with the other certifying entities to help ensure Council requirements and procedures are being met.
If the other entities' requirements or procedures no longer equal or exceed the requirements and procedures of the Act or this Part, the Council will no longer accept those certifications. However, the Council will continue to honor previously accepted certifications until the Secretary reviews each one and, if necessary, revokes those that do not meet the requirements of the Act and this Part.
The other entities must agree to report any denial of certification or recertification to the Council, along with detailed reasons for that action.

History

Source: Amended at 25 Ill. Reg. 4831, effective March 19, 2001

44 Ill. Adm. Code 10.64 Sales Limitation; Exception

a) Annual gross sales must be less than $75 million, the statutory maximum established by Section 2(A)(10) of the Business Enterprise for Minorities, Females and Persons with Disabilities Act [30 ILCS 575/2].

In determining the annual gross sales, sales of any affiliated business shall also be counted.
An affiliated business is one related to the other by virtue of significant commonality of management, or commonality of ownership (at least 5% of one company owned by owner or management personnel of the other). Other factors that may be considered in determining affiliation include, but are not limited to, sharing of office space, workers or equipment.

b) A business with annual gross sales equal to or greater than the statutory maximum is eligible to participate in the program if the business can show that, if it were to receive a particular contract or subcontract, there would be a significant impact on employment of minorities, females or persons with disabilities, or in the use of BEP certified subcontractors or suppliers. Such vendors must meet all certification requirements but will not be certified or be listed in the Directory.

For the impact to be significant in terms of employment, the business would have to hire new employees to perform the work of the contract and at least 51% of those new hires must be minority, female or persons with disabilities.
For the impact to be significant in terms of use of subcontractors or suppliers, the business must direct 51% of the value of the contract to BEP certified vendors as subcontractors or suppliers.

c) If the business makes contractual commitments regarding hiring or use of subcontractors or suppliers, agrees to appropriate enforcement mechanisms, such as bonding or damage provisions, and meets the other requirements for certification, the Secretary, on behalf of the Council, will approve counting expenditures under that contract toward the agency's goal.

History

Source: Amended at 36 Ill. Reg. 10717, effective July 6, 2012

44 Ill. Adm. Code 10.65 Citizenship/Permanent Residency

a) The individuals claiming ownership and control of the applicant business must be citizens or lawful permanent residents of the United States.

b) Proof of citizenship or permanent residency must be confirmed by a birth certificate, naturalization papers, permanent resident status documents, passports or other documents.

44 Ill. Adm. Code 10.66 Ownership/Control by Members of Eligible Groups

a) The individuals claiming ownership and control of the applicant business must be members of the eligible groups identified in Section 10.40(a) of this Part.

b) The applicant must provide proof of eligible group status. Proof must be in the form of official documentation such as birth certificates, passports, naturalization papers, or Tribal I.D. Card, if available. If an individual does not have official documentation, or if it is not sufficient, the Secretary will consider other evidence the applicant submits. Other evidence might include whether the individual identifies with, holds him or herself out as part of, or others recognize him or her as belonging to, an eligible group.

44 Ill. Adm. Code 10.67 Ownership

a) The individuals claiming ownership and control of the applicant business must own at least 51% of the business.

b) The ownership shall be real, substantial and continuing and not simply a matter of form. "Real" is a bona fide investment in the business done at arm's length and in good faith. "Substantial" is the level of investment necessary to initiate or acquire the particular business in light of its value, the business field, the organization of the concern, and the potential sources of outside financing. The following factors, among others, are weighed together to help determine whether ownership is real, substantial, continuing and not a matter of form.

How ownership was obtained, including, but not limited to, purchase, gift or inheritance.
How substantial was the contribution toward ownership in terms of expertise, money, or other such factors? The following are some examples of factors that may indicate insufficient contribution:

A) minimal cash outlay or personal investment;

B) a promise or agreement to contribute capital;

C) a note payable to the firm or other owners who are not eligible group members;

D) contributions for services rather than capital, except where services are unique, specialized or of a value commensurate with the ownership value of such services;

E) payment of contribution with funds loaned by a non-eligible group, former employer or stockholder;

F) no recourse loans where the borrower assumes no liability for repayment upon default; and

G) no recourse stock purchases wherein the purchaser assumes no liability upon default of payment other than transaction of shares.

How the applicant holds ownership. In terms of stock holdings, the following are factors that may indicate ownership is not as stated:

A) minimal cash outlay or personal investment;

B) a promise or agreement to buy stock;

C) stock issued, but not purchased;

D) stock certificates purchased but not in the possession of the applicant; or

E) stock held in trust.

The applicant must provide documentary proof of ownership, including, but not limited to, the following:

A) canceled checks or bookkeeping entries;

B) signed purchase agreements;

C) stock certificates, transfer ledgers and stockholder agreements;

D) partnership agreements;

E) profit sharing agreements; and

F) buy-out-right agreements.

History

Source: Amended at 25 Ill. Reg. 4831, effective March 19, 2001

44 Ill. Adm. Code 10.68 Control

a) Ownership by eligible group members does not equate to control.

b) The individuals claiming ownership and control of the applicant business must actually control the applicant business. Those individuals must be in direct control of the day to day operations, and must have, and exercise, the power to make major decisions on management, policy, fiscal and operational matters. At a minimum, the following factors will be considered in determining control.

Do the articles of incorporation show the eligible group owners were involved at the time of incorporation and in what way? If the eligible group owners were not involved at the time of incorporation, when did they become involved?
Corporate by-laws will be reviewed to determine:

A) the duties of the directors and officers who occupy these positions;

B) the voting rights of the shareholders; and

C) any restrictive language that may affect the eligible group owner's stock voting rights.

Are there any stock options/shareholders agreements that, if exercised, will dilute or eliminate eligible group owner control?
Do the eligible group owners make decisions independently?
Does a review of resumes show the eligible group owners have sufficient background, including education and training, to run the particular business and for the responsibilities assigned?
Do the eligible group owners continue to work for a firm not eligible for the BEP, and if so, what is the relationship of the firm to the applicant business?
Who in the firm negotiates contracts and loans, prepares estimates and makes other management and supervisory decisions?

History

Source: Amended at 25 Ill. Reg. 4831, effective March 19, 2001

44 Ill. Adm. Code 10.69 Notice of Certification or Denial

a) Notification of Certification

When the Secretary has determined that the applicant meets the requirements of the Act and this Part, the Secretary will notify the applicant by letter that it has been certified.

b) Notification of Denial of Certification

When the Secretary determines that the applicant does not meet the requirements of the Act and this Part, the Secretary shall send a letter to the applicant setting forth the rationale for the determination and advising the applicant of the review process.

c) Effect of Denial

After all reconsiderations and reviews provided in this Part have been exhausted, if the decision remains to deny certification, the Secretary shall remove the applicant from the list of certified vendors.

d) Reapplication

If a certification application is denied, the business may reapply one year after the date of denial. Applications submitted prior to that date will not be considered.

History

Source: Amended at 25 Ill. Reg. 4831, effective March 19, 2001

44 Ill. Adm. Code 10.70 Review and Reconsideration

a) The applicant may request a review of a certification denial by submitting this request in writing to the Secretary postmarked no later than 30 days after the applicant received the certification denial letter. The request must state why the applicant believes the denial decision is wrong, must address all points raised in the denial decision and must include any supporting documentation.

b) The Council's Certification Committee, made up of at least three Council Members, shall consider any requested review of the denial decision. The Secretary will attempt to schedule a Committee meeting within 30 days after receipt of the request for review. The meeting shall be held in Chicago. The Secretary will notify the applicant at least 10 days prior to the meeting of the location, date and time.

c) The Secretary shall provide each Committee member with a copy of the request for review, other relevant information and a response to the points raised in the request for review. Each Committee member shall review the files prior to the meeting.

d) The Committee Chair shall call the meeting to order, announce the matter at issue and explain the meeting procedures. The Chair shall briefly restate the reasons given for the denial decision and open the floor to the applicant. The meeting shall proceed in an informal manner within these procedures. All information obtained shall be considered.

e) The applicant may make an opening statement, but must respond to each of the reasons for denial given in the denial decision. The applicant may bring and question any witnesses. The Committee may ask questions of the applicant, the Secretary or any other person present. The Secretary may comment at any time. When the applicant is finished the Secretary may call witnesses. Both applicant and Secretary may make closing statements. Although the applicant may have an attorney or other representatives assist at the meeting, applicant must be present and applicant must respond to questions of the Committee.

f) The Committee shall consider the information obtained at the meeting. The Committee's decision will be based upon majority vote to be given at a Committee meeting or submitted individually to the Secretary, who shall record and report the vote.

g) If the decision is favorable to the applicant, the Secretary will notify and place the applicant on the list of certified vendors. If the decision is adverse to the applicant, the Secretary will notify the applicant, providing the Committee's reasons and information on the further review that is available.

h) The applicant may ask that the full Council review an adverse decision of the Certification Committee. The applicant must submit this request in writing to the Secretary. The request must be postmarked no later than 15 days after the applicant received the Committee's decision. This request must state why the applicant believes the Committee's decision is wrong, must address all points raised in the Committee's decision and must include any supporting documentation.

i) The Secretary shall provide each Council member with a copy of the request for review and a copy of the Secretary's file on the matter. In addition, the Secretary shall prepare and submit to the Council a draft response to the points raised in the request for review. The Secretary shall consult with the Committee prior to submitting the draft.

j) The Secretary will schedule the review at the earliest convenience of the Council. The applicant will be told of the location, date and time of the meeting.

k) The Council shall consider only the written information provided or produced by the applicant, the Certification Committee and the Secretary. The Council may, on its own, request that the applicant address the Council or respond to specific questions. If the Council requests that the applicant be present, the applicant may have an attorney or other representative assist at the meeting, but the applicant must be available to respond to Council questions. The Council will allow the applicant to address the Council if the applicant makes that request as part of the second request.

l) After reviewing all information obtained, the Council shall vote to uphold the Committee's decision, overturn the Committee's decision or have the matter sent back to the Committee for reconsideration with instructions from the Council.

m) If the decision is favorable to the applicant, the Council shall inform the Secretary. The Secretary shall place the applicant on the list of certified vendors. The Secretary shall inform the applicant.

n) If the decision is adverse to the applicant, the Council shall inform the Secretary. The Secretary shall notify the applicant.

o) If the decision is to send the matter back to the Committee, the process shall continue from that point until resolved at the Committee or Council level.

History

Source: Amended at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.71 Decertification Process

a) The State, or a third-party, may challenge the certification status of a business at any time.

b) Upon receipt of information that questions the validity of a certification, the Secretary shall conduct an investigation. This may include on-site or telephone interviews, review of existing records, or collection and examination of new records to supplement, explain or clarify records previously submitted.

c) If the investigation results in a finding that the firm is no longer eligible for BEP status, the Secretary shall notify the firm that it is decertified. The applicant may appeal using the review and reconsideration procedure of Subpart G. After decertification, the applicant may not reapply for certification until one year has passed since the date of decertification. A certification of the applicant by another entity shall not be accepted during the one year period following decertification.

44 Ill. Adm. Code 10.72 Annual Confirmation of Eligibility

a) To maintain its certification, a certified business must file with the Secretary on an annual basis an Annual Confirmation form confirming there have been no changes in ownership or control from the last certification that would affect the validity of the certification and shall provide any additional information requested by the Secretary. The Annual Confirmation form shall be in the form specified by the Secretary and shall include, but not be limited to, owner demographics, annual gross sales, current licensing, ownership interest, certification documentation with other entities and a signed and notarized affidavit.

b) At least 60 days prior to the anniversary of a certification, the Secretary shall send a notice to the certified business advising that it must complete and return the Annual Confirmation form, postmarked by the date specified in the notice.

c) If the certified business fails to submit the Annual Confirmation form, the Secretary shall issue a provisional revocation of the certification and so notify the business. If the Annual Confirmation form is not received within 30 days after the mailing of the provisional revocation to the certified business, the revocation shall become final and the business shall be so notified.

d) If the certified business submits an Annual Confirmation form that indicates that ownership or control have changed such that the certified business is or may be no longer eligible for certification, the Secretary may request further information or may issue a final revocation.

e) Upon receipt of the notice of final revocation, the certified business may submit a new and complete application for certification.

f) In addition to the annual confirmation, the Secretary may require confirmation of eligibility at any time during the term of certification.

History

Source: Amended at 31 Ill. Reg. 4023, effective February 22, 2007

44 Ill. Adm. Code 10.80 Special Assistance

a) Purchasing agencies may waive or reduce bond requirements for certified vendors when allowed by law and when the reduced bond amount would adequately protect the State's interests.

b) Purchasing agencies may enter into contracts with certified vendors that contain a provision allowing advance or progress payments or both, except that a construction contract may not contain an advance payment provision. The advance or progress payment provision may be added to a contract at any time by agreement of the parties. Agencies must consider the application of Section 9.05 of the State Finance Act [30 ILCS 105/9.05] before including such provisions in contracts.

c) With the prior general approval of the Council, the Chief Procurement Officer for General Services may, by express written authorization, allow purchasing agencies to establish set-asides and other such preferences for BEP certified vendors.

44 Ill. Adm. Code 10.61 Applicant Requirements

The applicant for initial certification, or recertification, must meet all of the requirements set forth in the Act and this Part. Should the applicant fail to meet any of the certification requirements, or refuse to supply information requested by the Secretary, the Secretary will deny certification or recertification.

44 Ill. Adm. Code 10.90 Change in Eligibility

a) Any contract awarded with Section 10.80 provisions may not be assigned to another vendor without approval of the Secretary.

b) Should a vendor who received a contract with Section 10.80 provisions cease to qualify as a BEP vendor during contract performance, the purchasing agency may cancel the contract immediately without penalty to the State.

c) Any change in the eligibility status of a vendor awarded a contract with Section 10.80 provisions shall be reported to the Council by both the vendor and the purchasing agency.

44 Ill. Adm. Code 10.91 Contract Commitment; Good Faith Effort

a) A vendor who obtains a contract requiring hiring of BEP certified vendors, such as pursuant to Section 10.64, or who makes a voluntary contractual commitment to hire BEP certified vendors, and who fails to do so, is subject to having the contract canceled. If the agency cancels the contract, the vendor may be liable for any damages the State suffers as a result of the cancellation. The State may excuse the vendor's failure if the vendor can show a good faith effort to remain in compliance.

b) Any vendor claiming good faith relief must fully document, in writing, the steps taken to obtain BEP certified vendors as subcontractors. The State may require that the vendor provide additional information on request. A good faith effort shall, at a minimum, consist of the following:

contacting the Business Enterprise Bureau at least 15 days prior to need and requesting referrals from the certified vendor list and from any other list maintained by the Bureau;
advertising in the Official State Newspaper or a local newspaper as time permits; and
contacting appropriate organizations such as unions, contractor associations, and MBE, FBE, or PBE oriented organizations.

c) If a good faith exception is given, the purchasing agency shall notify the Secretary of the exception and shall include all pertinent information.

History

Source: Amended at 25 Ill. Reg. 4831, effective March 19, 2001

44 Ill. Adm. Code 10.100 Violations by Vendor

Should a vendor violate the Act, this Part, or the terms of contracts let pursuant to this Program, the State may pursue any or all of the following actions.

a) A certified vendor may be decertified and an applicant for certification may be denied certification for reasons including, but not limited to:

refusal to supply information sufficient for the Secretary or the Council to make a determination for eligibility or continued eligibility;
refusal to supply additional proof of eligibility for the Program, particularly after receiving a contract with Section 10.80 (Special Assistance) provisions;
accepting a contract with Section 10.80 (Special Assistance) provisions when the vendor does not qualify for the Program; or
any other violation of the Act or this Part.

b) The State may cancel, without penalty to the State, any contract entered into by a vendor in violation of:

the Act or this Part;
the requirements of a contract let with Section 10.80 (Special Assistance) provisions; or
commitments regarding use of certified vendors, including, but not limited to, those in Section 10.64 (Sales Limitation; Exception) and Section 10.91 (Contract Commitment; Good Faith Effort).

c) In the case of a cancellation under subsection (b)(2) or (b)(3), the amount of profit applicable to amounts paid to the vendor shall be withheld from any amounts owed to the vendor. If the amount owed the vendor is insufficient to off-set profits, the vendor shall be liable to pay back to the State any balance of those profits. The profit rate shall be deemed 20% unless a lesser or greater amount can be conclusively proved.

d) The Secretary may suspend a vendor from the program for a period of no more than one year and a contracting agency may cancel a contract for a violation of:

the Act or this Part;
the requirements of a contract let with Section 10.80 (Special Assistance) provisions; or
commitments regarding use of certified vendors, including, but not limited to, those in Section 10.64 (Sales Limitation; Exception) and Section 10.91 (Contract Commitment; Good Faith Effort).

e) Depending on the seriousness of the violation, the suspension shall be:

from participation in the BEP Program; or
from further contracting with the State.

f) A vendor may appeal any of the actions of the Council taken pursuant to this Section in the same manner as a vendor denied certification (see Subpart G of this Part).

g) The Secretary shall notify the Chief Procurement Officers, State Purchasing Officers and other interested parties of the revocation of certification or of suspension.

h) If any agency finds or suspects that a business is in violation of the Act or of this Part, the violation should be reported to the Secretary as soon as practicable after the finding.

History

Source: Section 10.200 renumbered from Section 10.100 at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.200 Purpose

This Subpart is intended:

a) to set forth the practice and procedures to be followed for the establishment and continuation of narrowly tailored sheltered markets under Section 8b of the Act;

b) to provide opportunity for the public to understand and comment on evidence regarding past or present racial, gender or disability-based discrimination present in procurements by interested State agencies;

c) to establish procedures by which the Council consults interested or affected segments of the public;

d) to enable the Department to fully consider and respond to evidence regarding past or present racial, gender or disability-based discrimination present presented to the Council;

e) to establish cooperation between the Department and other governmental bodies, including the Council, the Offices of the Chief Procurement Officers, and interested State agencies and public institutions of higher education;

f) to foster openness among the Department, other governmental bodies, and the public; and

g) to comply with State and federal requirements.

History

Source: Added at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.201 Applicability

This Subpart sets forth the procedures to be followed by the Department, State agencies, public institutions of higher education and the Council in collecting evidence of past or present racial, gender, or disability-based discrimination present in the award of State contracts, and applying, if appropriate, procedures to establish and continue narrowly tailored sheltered markets to address this discrimination. This Subpart shall apply to procurements of State agencies and public institutions of higher education as defined in Section 10.10.

History

Source: Added at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.202 Evidence of Discrimination

a) The Council shall receive, review and discuss any evidence regarding past or present racial, gender or disability-based discrimination that directly impacts State contracting at every regular meeting. Evidence may include, but is not limited to, written documentation or oral testimony regarding specific instances of such discrimination against MBEs, FBEs and PBEs.

b) The Department may commission disparity and utilization studies that may indicate, among other things, any quantitative effects of discrimination in specific industries and geographic locations. The Department shall forward a copy of its findings and recommendations to the Council.

c) The Secretary shall investigate and make recommendations to the Council concerning the use of the sheltered market process.

History

Source: Added at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.203 Establishment and Adjustment of Sheltered Markets

a) The Council shall vote to decide whether to establish a sheltered market or to adjust an existing sheltered market when the Council finds a pattern of racial, gender or disability-based discrimination in a particular industry.

The Council must vote to establish or adjust an existing sheltered market by a majority vote.
The Council shall only vote to establish sheltered markets when other feasible remedial measures are insufficient to address the discrimination; provided, however, that there shall be no requirement to exhaust all potential remedial measures before establishing sheltered markets.

b) The procuring State agency or public institution of higher education shall work with its respective Chief Procurement Officer to implement or adjust existing sheltered markets as established by the Council.

History

Source: Added at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.204 Sheltered Market Procurements

Solicitations selected by the procuring State agency or public institution of higher education to implement sheltered markets through specific procurements shall be a narrowly tailored remedy to address identified discrimination.

History

Source: Added at 42 Ill. Reg. 12941, effective June 25, 2018

44 Ill. Adm. Code 10.205 Participation Eligibility

a) Participation in any sheltered market solicitation shall be limited to BEP certified vendors.

b) The Council may choose which subgroups within the BEP certified vendor pool can participate in any sheltered market, on a case-by-case basis, based on evidence of racial, gender or disability-based discrimination.

c) Participating businesses shall make all books and records related to the performance of any sheltered market contract available for audit pursuant to Section 20-65 of the Illinois Procurement Code.

d) Any subcontractors utilized on a sheltered market procurement shall be BEP certified vendors.

History

Source: Added at 42 Ill. Reg. 12941, effective June 25, 2018

Part 20 Service-Disabled and Veteran-Owned Small Businesses

44 Ill. Adm. Code 20.10 Introduction

44 Ill. Adm. Code 20.20 Definitions

"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 USC 101. Service in the Merchant Marine that constitutes active duty under section 401 of PL 95-202 shall also be considered service in the armed forces for purposes of this Section. [30 ILCS 500/45-57(e)]

"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, may also 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. [30 ILCS 500/45-57(e)]

"CMS" refers to the Department of Central Management Services.

"Committee" means a group made up of 5 individuals appointed by the Director of CMS and the Director of the Department of Veterans' Affairs (DVA) for the purpose of overseeing the certification process for qualified service-disabled veteran-owned small businesses and qualified veteran-owned small businesses. The Director of CMS will appoint 2 persons and the Director of DVA will appoint 3 persons. The appointees will serve for 2 years. The committee shall select a chair person who shall serve until his or her term expires.

"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. [30 ILCS 500/45-57(e)]

"Construction" means building, altering, repairing, improving, or demolishing any public structure or building, or making improvements of any kind to public real property. Construction does not include the routine operation, routine repair, or routine maintenance of existing structures, buildings, or real property.

"Construction-related Services" means those services including construction design, layout, inspection, support, feasibility or location study, research, development, planning or other investigative study undertaken by a construction agency concerning construction or potential construction.

"Construction Agency" means the Capital Development Board for construction or construction-related services of State-owned facilities; the Illinois Department of Transportation for construction or maintenance of roads, highways, bridges, and airports; and the Illinois State Toll Highway Authority for construction or maintenance of toll highways.

"Eligible Group Member" means a person who meets the eligibility requirements set forth in Section 20.300.

"General Discharge (Under Honorable Conditions)" means a confirmation of an administrative separation of a service member from military service whose service has been honest and faithful and appropriate to characterize that service under honorable conditions. A general discharge (under honorable conditions) meets the qualification standard under the SDVOSB and VOSB Program. (See DoD Dir. 1332.14.E3.A2.1.3.2 and E4.3.b(2)(b).)

"Illinois Procurement Code" or "Code" means 30 ILCS 500.

"Qualified Service-Disabled Veteran" means a veteran who has been found to have 10% or more service-connected disability by the United States Department of Veterans Affairs or the United States Department of Defense [30 ILCS 500/45-57(e)].

"Qualified Service-Disabled Veteran-Owned Small Business" or "SDVOSB" means a small business 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; that has its home office in Illinois; and for which these ownership requirements are factually verified annually by CMS. [30 ILCS 500/45-57(e)]

"Qualified Veteran-Owned Small Business" or "VOSB" means a small business 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; that has its home office in Illinois; and for which these ownership requirements are factually verified annually by CMS. [30 ILCS 500/45-57(e)]

"Service-Connected Disability" means a disability incurred in the line of duty in the active military, naval, or air service as described in 38 USC 101(16). [30 ILCS 500/45-57(e)]

"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 CMS for certification for a particular contract if the firm can demonstrate that the contract would have significant impact on the SDVOSB or VOSB as suppliers or subcontractors or in employment of veterans or service-disabled veterans. [30 ILCS 500/45-57(e)]

"State Agency" means all departments, officers, boards, commissions, institutions and bodies politic and corporate of the State, but does not include the Board of Trustees of the University of Illinois, the Board of Trustees of Southern Illinois University, the Board of Trustees of Chicago State University, the Board of Trustees of Eastern Illinois University, the Board of Trustees of Governors State University, the Board of Trustees of Illinois State University, the Board of Trustees of Northeastern Illinois University, the Board of Trustees of Northern Illinois University, the Board of Trustees of Western Illinois University, municipalities or other local governmental units, or other State constitutional officers. [30 ILCS 575/2(6)]

"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. [30 ILCS 500/45-57(e)]

"Utilization Plan" means a plan that describes how the bidder/offeror intends to utilize SDVOSBs or VOSBs to meet the State goal in a solicitation.

"Veteran" means a person who 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 has served under one or more of the following conditions:

the veteran served a total of at least 6 months;

the veteran served for the duration of hostilities regardless of the length of the engagement;

the veteran was discharged on the basis of hardship; or

the veteran was released from active duty because of a service connected disability and was discharged under honorable conditions. [30 ILCS 500/45-57(e)]

"Veterans Small Business Program" or "Program" means the State's program that:

fosters economic opportunities for Illinois' military veterans by encouraging the establishment of SDVOSBs and VOSBs; and

establishes an annual, ongoing, percentage goal for all State agencies' award of supplies and services contracts and construction-related State spending that shall be set aside for competitive bidding by Illinois SDVOSBs and VOSBs.

44 Ill. Adm. Code 20.100 Goal

In accordance with Section 45-57(a) of the Code, not less than 3% of the total dollar amount of State contracts, as defined by the Director of CMS, shall be the goal for awarding contracts to SDVOSBs and VOSBs. For contracts other than for construction and construction-related services entered into by a construction agency, CMS will determine goals for individual contracts unless that authority is delegated to the procuring State agency. For contracts for construction and construction-related services entered into by a construction agency, CMS delegates to the construction agency the authority to determine the goal for the individual contract.

44 Ill. Adm. Code 20.110 Contracts and Expenditures Subject to the Goal

All contracts funded in whole or in part with funds appropriated by the General Assembly are subject to the goal unless exempted elsewhere in this Part.

44 Ill. Adm. Code 20.120 Categories of Contracts and Expenditures Exempt from the Goal

a) Contracts shall be exempt from the goal if:

The contract is subject to federal reimbursement; or
Receipt of funds for a contract would be jeopardized by including them in the Program.

b) CMS has determined that the following categories of contracts and expenditures, including but not limited to the detailed expenditure accounts listed below each category, are exempt from the goal. This determination was made based on the best information available that these categories do not represent procurement opportunities for SDVOSBs or VOSBs, or that there are not sufficient SDVOSBs or VOSBs to ensure competition and an expectation of reasonable prices. The detailed expenditure accounts have the same meaning as used by the State Comptroller (see the Statewide Accounting Management System (SAMS) manual, available from CMS).

Contracts between, or within, State agencies that do not include payments to private vendors.
Contracts with or payments to other governmental entities:

A) Payments to Local Governments for Employees;

B) Reimbursements to Governmental Units;

C) Postage and Postal Charges;

D) Operating Taxes, Licenses and Fees;

E) Revenue Stamps;

F) Taxes and Transfers;

G) Fire Protection Services;

H) Shared Waterway Agreements; and

I) Shared Revenue Payments.

Employee wages, salaries and other payroll and employee related costs:

A) Payments into Pension Funds;

B) Pensions, Annuities and Benefits;

C) Purchase of Investments;

D) Employee Tuition Fees;

E) Social Security;

F) Retirement;

G) Unemployment Compensation Payments;

H) Legislative Staff Services;

I) Registration Fees and Conference Expenses;

J) Industrial Commission Awards or Settlement Awards for Injured Employees; and

K) Awards, Benefits and Treatment Expenses − Injured Employees.

Payments of money to individuals or groups in the nature of reimbursement, settlement, entitlement or assistance:

A) Assistance Payments to Individuals;

B) Awards and Grants to Students;

C) Burial Expense Awards;

D) Community Services for Department of Human Services- Divisions of Mental Health and Developmental Disabilities Clients and the Chemically Dependent;

E) Court of Claims Awards;

F) Reimbursement for Living Expenses for State Wards Outside State Institutions;

G) Tuition, Training Supplies and Equipment for Aided Persons;

H) Lottery Prizes;

I) Interviewee Expenses; and

J) Tort Claims.

Debt retirement and refunds of money:

A) Debt Retirement;

B) Loans; and

C) Refunds.

Grants:

A) Grants for Educational Purposes − School Districts;

B) Grants for Educational Purposes − Higher Education;

C) Grants to Local Governments (other);

D) Grants to Non-Profit Organizations;

E) Grants to Other State Agencies; and

F) Grants to or on Behalf of Veterans and their Dependents who Qualified under Wartime Service.

Public utility contracts and payments:

A) Electricity;

B) Gas (Natural Gas);

C) Telecommunications (regulated service only);

D) Water; and

E) Utilities (Other).

Real estate acquisition:

A) Land, Relocation Costs;

B) Land, Relocation Costs (Highways);

C) Land, Relocation Costs (Waterways);

D) Land, Rights of Way and Easements;

E) Land, Rights of Way and Easements (Highway); and

F) Land, Rights of Way and Easements (Waterways).

Miscellaneous contracts and expenditures:

A) Association Dues; and

B) Periodical Subscriptions.

c) Prior to the end of each fiscal year, CMS shall investigate the categories of contracts and expenditures to determine whether, based on the best information available, these categories continue to represent procurements in which there are no opportunities for SDVOSBs or VOSBs, or that there are not sufficient SDVOSBs or VOSBs to ensure competition and an expectation of reasonable prices.

44 Ill. Adm. Code 20.130 Review of Agency Requests for Specific Exemptions

a) A contract may be exempted from the goal prior to the solicitation being posted if it is determined that the specific contract does not represent a procurement opportunity for SDVOSBs and VOSBs as defined in Section 20.120, or that there are not sufficient SDVOSBs and VOSBs to ensure competition and an expectation of reasonable prices.

b) The exemption request must be documented in a written memorandum of decision. The memorandum must indicate, based on the best information available, that the particular contract does not represent a procurement opportunity for SDVOSBs and VOSBs, or that there are not sufficient SDVOSBs and VOSBs to ensure competition and an expectation of reasonable prices. The memorandum must be approved in writing by the agency Director.

c) CMS or the procuring State agency, as delegated by CMS, shall exempt specific contracts from the goal if it determines that the agency did provide reasonable proof that certified SDVOSBs and VOSBs are not available to meet the contracting need.

d) A construction agency may exempt specific contracts from the goal if it documents reasonable proof that certified SDVOSBs and VOSBs are not available to meet the contracting need.

44 Ill. Adm. Code 20.140 Goal Measurement

a) The goal shall be measured on a full fiscal year basis and shall be measured against the total dollar amount of expenditures subject to the goal. Expenditures not subject to the goal are those described in Sections 20.110 and 20.120.

b) Contract expenditures established by an agency shall be included in the agency's goal attainment statistics. Orders by a user agency against contracts established on behalf of one or more user agencies shall be counted toward goal attainment statistics of the user agency.

44 Ill. Adm. Code 20.150 Subcontracting

An agency may satisfy its goal, in whole or in part, by counting expenditures made by State vendors to certified SDVOSBs and VOSBs as subcontractors.

44 Ill. Adm. Code 20.200 Agency Compliance and Reporting

a) All State agencies, including the construction agencies, shall report to the Committee and CMS each quarter all of the following:

The aggregate amount of dollars spent on State contracts with SDVOSBs and VOSBs;
The number of approved memorandums exempting specific contracts from the goal and the reason for the exemption; and
The number of good faith effort waivers granted.

b) Fiscal Year Reports: By each September 1, each Chief Procurement Officer (CPO) shall report to CMS on all of the following for the immediately preceding fiscal year, and by each March 1 CMS shall compile and report that information to the General Assembly:

The total number of SDVOSBs, and the number of VOSBs, who submitted bids and/or proposals under this Part.
The total number of SDVOSBs, and the number of VOSBs, who entered into contracts with the State under this Part and the total value of those contracts. [30 ILCS 500/45-57(b)]

c) Yearly Review and Recommendations: Each year, each CPO shall review the progress of all State agencies under its jurisdiction in meeting the goal described in Section 20.100, with input from statewide veterans' service organizations and from the business community, including SDVOSBs and VOSBs. Each CPO shall make recommendations to be included in the CMS 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 veterans and on the continued need to encourage and promote businesses owned by qualified veterans. [30 ILCS 500/45-57(c)]

44 Ill. Adm. Code 20.300 Program Eligibility

To qualify as a SDVOSB or VOSB:

a) The business must be owned and controlled by veterans and/or service-disabled veterans;

b) It must be a small business that does not exceed the sales limitation established in the definition in Section 20.20;

c) It must be an authorized business registered within the State of Illinois;

d) Qualified veterans who are Illinois residents must hold 51% of ownership of the business; and

e) The business home office must be in the State of Illinois.

44 Ill. Adm. Code 20.400 General

a) The certification process verifies that the business is owned and controlled by eligible individuals in accordance with requirements of the Code and this Part. CMS will oversee the certification process outlined in this Section.

CMS will certify an entity, business or firm that meets the requirements listed in this Part. All certifications, new and existing, shall be valid for a period of 5 years from the effective date of the certification, subject to annual confirmation.
Only certified SDVOSBs and VOSBs are eligible for the benefits of the Program. Agencies may count only those expenditures with a certified business or certified business subcontractor toward meeting the goal.
A business owned and controlled by at least 51% service-disabled veterans and veterans shall be counted as a business owned and controlled by the eligible group that has the largest percentage of ownership.

b) These classifications facilitate consistent accounting of agency contract awards to businesses covered by the Code. Certification under the Program does not preclude those businesses from receiving any contract that may be awarded under the Code or other applicable law.

44 Ill. Adm. Code 20.410 Program Information

a) CMS shall compile a list of businesses certified under the Code and may compile and maintain other information regarding the Program, including general vendor lists.

b) The list will contain the name, address, telephone and facsimile numbers, e-mail address, type of certification (SDVOSB or VOSB) and business classification (e.g., accounting or furniture sales) of certified businesses.

c) The list shall be available to the Chief Procurement Officers and State Purchasing Officers defined in the Code and to other interested State agencies for use in State purchasing.

d) The list of certified businesses shall be available to the public. This list and other information shall be provided electronically via the CMS website (http://www2.illinois.gov/cms/business/).

44 Ill. Adm. Code 20.500 Application

The business seeking certification must complete an application package. CMS personnel may conduct a personal interview with the applicant that may include a telephone interview and/or an on-site visit. Additional on-site visits may be conducted at any time during the life of a certification to verify continued eligibility for the Program.

44 Ill. Adm. Code 20.510 Application Requirements

The applicant for initial certification, or recertification, must meet all of the requirements set forth in the Code and this Part. Should the applicant fail to meet any of the certification requirements, or refuse to supply information requested by CMS, the applicant will be denied certification or recertification. These requirements include, but are not limited to, the veteran's certification application; DD-214 (Report of Separation) which will confirm veteran's characterization of service and discharge status; and the U.S. Department of Veterans Affairs Rating Decision Letter which will confirm the veteran's service and non-service connected disability compensation rating.

44 Ill. Adm. Code 20.520 Eligibility Determination

CMS shall contact all applicants seeking certification, via U.S. Mail or electronic correspondence, within 60 days after receipt of the application and all supporting documents. CMS shall grant certification, deny certification, or request additional or clarifying information necessary to make the certification decision.

44 Ill. Adm. Code 20.530 Certification by Other Certifying Entities

a) CMS may accept a certification by another entity, such as a local government or a federal program for veteran small business owners. That entity must have certification requirements and procedures equaling or exceeding those required by the Code and under Subpart D of this Part (Program Eligibility).

b) CMS shall investigate requirements and procedures of other certifying entities and shall maintain a list of those certifying entities whose certifications can be accepted.

CMS may periodically meet with the other certifying entities to ensure compliance.
If the other entities' requirements or procedures no longer equal or exceed the requirements and procedures of CMS, CMS will no longer accept those certifications.
Applicants must immediately report the denial/loss of certification or recertification by another certifying entity to CMS, along with detailed reasons for the action.

44 Ill. Adm. Code 20.540 Sales Limitation; Exception

a) Annual gross sales must be less than $75 million. In determining the annual gross sales, sales of any affiliated business shall also be counted.

b) An affiliated business is one related to the other by virtue of significant commonality of management or commonality of ownership (at least 5% of one company owned by owner or management personnel of the other). Other factors that may be considered in determining affiliation include, but are not limited to, sharing of office space, workers or equipment.

44 Ill. Adm. Code 20.550 State Residency

a) The veterans claiming 51% ownership and control of the applicant business must be living in the State of 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 the State of Illinois. Proof of residency may include Illinois driver's license or ID card, Illinois tax documents, or W-2s.

b) Qualifying SDVOSBs or VOSBs must provide proof that they have a home office in the State of Illinois.

44 Ill. Adm. Code 20.560 Ownership/Control by Members of Eligible Groups

a) Individuals claiming ownership and control of the applicant business must be members of the eligible groups identified in Section 20.300.

b) The applicant must provide proof of eligible veteran group status. Proof must be in the form of official documentation, i.e., the DD-214 (Report of Separation) and the U.S. Department of Veterans Affairs Rating Decision Letter.

44 Ill. Adm. Code 20.570 Ownership

a) The individuals claiming ownership and control of the applicant business must own at least 51% of the business.

How ownership was obtained, including, but not limited to, purchase, gift or inheritance.
How substantial was the contribution toward ownership in terms of expertise, money or other such factors? The following are some examples of factors that may indicate insufficient contribution:

A) Minimal cash outlay or personal investment;

B) A promise or agreement to contribute capital;

C) A note payable to the firm or other owners who are not eligible group members;

D) Contributions for services rather than capital, except when services are unique, specialized or of a value commensurate with the ownership value of the services;

E) Payment of contribution with funds loaned by a non-eligible group, former employer or stockholder;

F) No recourse loans when the borrower assumes no liability for repayment upon default; and

G) No recourse stock purchases in which the purchaser assumes no liability upon default of payment other than transaction of shares.

How the applicant holds ownership. In terms of stock holdings, the following are factors that may indicate ownership is not as stated:

A) Minimal cash outlay or personal investment;

B) A promise or agreement to buy stock;

C) Stock issued, but not purchased;

D) Stock certificates purchased but not in the possession of the applicant; or

E) Stock held in trust.

The applicant must provide documentary proof of ownership, including, but not limited to, the following:

A) Canceled checks or bookkeeping entries;

B) Signed purchase agreements;

C) Stock certificates, transfer ledgers and stockholder agreements;

D) Partnership agreements;

E) Profit sharing agreements; and

F) Buy-out-right agreements.

44 Ill. Adm. Code 20.580 Control

a) Ownership by eligible group members does not equate to control.

b) The individuals claiming ownership and control of the applicant business must actually control the applicant business. Those individuals must be in direct control of the day to day operations and must have, and exercise, the power to make major decisions on management, policy, fiscal and operational matters. At a minimum, the following factors will be considered in determining control:

Do the articles of incorporation show the eligible group owners were involved at the time of incorporation and in what way? If the eligible group owners were not involved at the time of incorporation, when did they become involved?
Corporate by-laws will be reviewed to determine:

A) The duties of the directors and officers who occupy these positions;

B) The voting rights of the shareholders; and

C) Any restrictive language that may affect the eligible group owner's stock voting rights.

Are there any stock options/shareholders agreements that, if exercised, will dilute or eliminate eligible group owner control?
Do the eligible group owners make decisions independently?
Does a review of resumes show the eligible group owners have sufficient background, including education and training, to run the particular business and for the responsibilities assigned?
Do the eligible group owners continue to work for a firm not eligible to be certified SDVOSBs or VOSBs and, if so, what is the relationship of the firm to the applicant business?
Who in the firm negotiates contracts and loans, prepares estimates and makes other management and supervisory decisions?

44 Ill. Adm. Code 20.590 Notice of Certification or Denial

a) Notification of Certification

When CMS has determined that the applicant meets the requirements of this Part, CMS will notify the applicant in writing that it has been certified.

b) Notification of Denial of Certification

When CMS determines that the applicant does not meet the requirements of this Part, CMS will send a letter to the applicant setting forth the rationale for the determination and advising the applicant of the appeal review process.

c) Effect of Denial

After all reconsiderations and reviews provided in this Part have been exhausted, if the decision remains to deny certification, the vendor will not be included in the list of certified vendors.

d) Reapplication

If a certification application is denied, the business may reapply one year after the date of denial. Applications submitted prior to that date will not be considered.

44 Ill. Adm. Code 20.600 Review and Reconsideration

a) The applicant may request that CMS reconsider a certification denial. CMS shall inform the applicant of the reconsideration decision within 60 days after receipt of the request for reconsideration.

b) The applicant may request a review of an unfavorable reconsideration decision of CMS. The applicant must submit this request in writing to CMS postmarked no later than 30 days after the applicant received the decision. The request must state why the applicant believes the decision is wrong, must address all points raised in the decision and must include any supportive documentation. Upon receipt of this request, CMS shall refer all documentation to the Committee for review.

c) The Committee (see Section 20.20) shall consider any requested appeal reviews from CMS. CMS will attempt to schedule a Committee meeting within 30 days after receipt of the request for review. The meeting may be held in Chicago or Springfield and CMS will notify the applicant at least 10 days prior to the meeting of the location, date and time.

d) CMS shall provide each Committee member with a copy of the request for review, other relevant information and a response to the points raised in the request for review. Each Committee member shall review the files prior to the meeting.

e) The Committee Chair shall call the meeting to order, announce the matter at issue and explain the meeting procedures. The Chair shall briefly restate the reasons given for the decision for denial and open the floor to the applicant. The meeting shall proceed in an informal manner within these procedures. All information obtained shall be considered.

f) The applicant may make an opening statement, but must respond to each of the reasons for denial given in the decision. The applicant may bring and question any witnesses. The Committee may ask questions of the applicant, CMS or any other person present. CMS may comment at any time. When the applicant is finished, CMS may call witnesses. Both the applicant and CMS may make closing statements. Although the applicant may have an attorney or other representatives assisting at the meeting, the applicant must be present and respond to questions of the Committee.

g) The Committee shall consider the information obtained at the meeting. The Committee's decision will be based upon majority vote to be given at a Committee meeting or submitted individually to CMS, who shall record and report the vote.

h) If the decision is favorable to the applicant, CMS will reverse its denial decision, notify the applicant, and place the applicant on the list of certified vendors. If the decision is adverse to the applicant, CMS will notify the applicant accordingly, providing the Committee's reasons for supporting CMS' original denial decision.

44 Ill. Adm. Code 20.610 Decertification Process

a) The State, or a third-party, may challenge the certification status of a SDVOSB or VOSB at any time.

b) Upon receipt of information that questions the validity of a certification, CMS shall conduct an investigation. This may include on-site or telephone interviews, review of existing records, or collection and examination of new records to supplement, explain or clarify records previously submitted.

c) If the investigation results in a finding that the firm is no longer eligible for SDVOSB or VOSB status, CMS shall notify the firm that it is decertified. The applicant may appeal using the review and reconsideration procedure of this Subpart G. After decertification, the applicant may not reapply for certification until one year has passed since the date of decertification. A certification of the applicant by another entity shall not be accepted during the one year period following decertification.

44 Ill. Adm. Code 20.620 Annual Confirmation of Eligibility

a) To maintain its certification, a certified business must file a No Change Affidavit with CMS on an annual basis, confirming there have been no changes in ownership or control from the last certification that would affect the eligibility of the certification and shall provide any additional information requested by CMS. The No Change Affidavit shall be in the form specified by CMS and shall include, but not be limited to, owner demographics, annual gross sales, current licensing, ownership interest, certification documentation with other entities, and a signed and notarized affidavit.

b) At least 60 days prior to the anniversary of a certification, CMS shall send a notice to the certified business advising that it must complete and return the No Change Affidavit, postmarked by the date specified in the notice.

c) If the certified business fails to submit the No Change Affidavit, CMS shall issue a provisional revocation of the certification and so notify the business. If the No Change Affidavit is not received within 30 days after the mailing of the provisional revocation to the certified business, the revocation shall become final and the business shall be decertified.

d) If the certified business submits a No Change Affidavit that indicates that ownership or control has changed so that the certified business is, or may be, no longer eligible for certification, CMS may request further information or may issue a final decertification.

e) Upon receipt of the notice of final decertification, the decertified business must submit a new and complete application for certification.

f) In addition to the annual confirmation, CMS may require confirmation of eligibility at any time during the term of certification.

44 Ill. Adm. Code 20.700 Special Assistance

a) Purchasing agencies may waive or reduce bond requirements for certified vendors when allowed by law and when the reduced bond amount would adequately protect the State's interests.

44 Ill. Adm. Code 20.800 Change in Eligibility

a) Any contract awarded to a SDVOSB or VOSB may not be assigned to another vendor without approval of the CPO, in consultation with CMS.

b) Should a vendor who received a contract with the advance or progress payment provisions cease to qualify as a SDVOSB or VOSB during contract performance, the purchasing agency may cancel the contract immediately without penalty to a State agency. Any change in the eligibility status of a vendor awarded a contract with advance or progress payment provisions shall be reported to the Program and the purchasing agency.

44 Ill. Adm. Code 20.810 Good Faith Efforts and Waiver Request Procedures

a) Vendors must make a good faith effort to meet the stated goal. A vendor that fails to meet the goal may still be awarded a contract if it can establish that it made a good faith effort to do so. CMS will determine whether a vendor has made a good faith effort to meet the goal unless that authority is delegated to the procuring agency. For contracts for construction and construction-related services entered into by a construction agency, the construction agency, if delegated that authority by CMS, will determine whether a vendor has made a good faith effort to meet the goal.

b) Vendors must submit a utilization plan with each bid or offer that demonstrates the vendor has either met or exceeded the goal or made good faith efforts toward meeting the goal. Any vendor claiming good faith relief must fully document in the utilization plan the steps taken to obtain SDVOSBs or VOSBs as subcontractors. CMS or the construction agency will consider the quality, quantity and intensity of the vendor's efforts.

c) The following is a list of types of actions that CMS or the construction agency may consider as evidence of the vendor's good faith efforts to meet the goal. Other factors or efforts brought to the attention of CMS may be relevant in appropriate cases.

Utilize the Sell2Illinois website (www.Sell2.illinois.gov) to identify certified SDVOSBs or VOSBs.
Soliciting through all reasonable and available means (e.g., attendance at a vendor conference, advertising and/or written notices) the interest of certified SDVOSBs or VOSBs that have the capability to perform the work of the contract. The Vendor must solicit this interest within sufficient time to allow certified SDVOSBs or VOSBs to respond to the solicitation. The vendor must determine with certainty if the certified SDVOSBs or VOSBs are interested by taking appropriate steps to follow up initial solicitations and encourage them to submit a bid or proposal. The vendor must provide interested certified SDVOSBs or VOSBs with adequate information about the plans, specifications and requirements of the contract in a timely manner to assist them in responding promptly to the solicitation.
Selecting portions of the work to be performed by certified SDVOSBs or VOSBs in order to increase the likelihood that the goal will be achieved. This includes, when appropriate, breaking out contract work items into economically feasible units to facilitate certified SDVOSBs or VOSBs participation, even when the vendor might otherwise prefer to perform these work items with its own forces.
Making a portion of the work available to certified SDVOSBs or VOSBs and selecting those portions of the work or material needs consistent with their availability, so as to facilitate certified SDVOSBs or VOSBs participation. Availability may include considerations of how the location of the SDVOSBs or VOSBs would affect the performance or cost of the contract.
Negotiating in good faith with interested certified SDVOSBs or VOSBs. Evidence of such negotiation must include the names, addresses and telephone numbers of certified SDVOSBs or VOSBs 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 certified SDVOSBs or VOSBs to perform the work. A vendor using good business judgment may consider a number of factors in negotiating with certified SDVOSBs or VOSBs and may take a firm's price and capabilities into consideration. The fact that there may be some additional costs involved in finding and using certified SDVOSBs or VOSBs may not be in itself sufficient reason for a vendor's failure to meet the goal, as long as such costs are reasonable. Vendors are not required to accept higher quotes from certified SDVOSBs or VOSBs if the price difference is excessive or unreasonable.
Thoroughly investigating the capabilities of certified SDVOSBs or VOSBs and not rejecting them as unqualified without documented reasons.
Making efforts to assist interested certified SDVOSBs or VOSBs in obtaining lines of credit or insurance as required by the State.
Making efforts to assist interested certified SDVOSBs or VOSBs in obtaining necessary equipment, supplies, materials, or related assistance or services.

d) If CMS or the construction agency determines that a vendor demonstrated good faith efforts towards meeting the stated goal on a bid or offer, a waiver will be issued. If CMS or the construction agency determines that a vendor did not demonstrate good faith efforts towards meeting the goal on a bid or offer, the bid or offer may be deemed non-responsible by the CPO.

e) A vendor who obtains a State contract requiring the utilization of SDVOSBs or VOSBs, or who makes a voluntary contractual commitment to hire SDVOSBs or VOSBs, and who fails to do so is subject to having the contract canceled. If a vendor seeks a waiver of its contractual commitment to utilize or hire SDVOSBs/VOSBs, the agency must contact the SDVOSB or VOSB prior to granting the waiver to substantiate the vendor's claim. If the agency cancels the contract, the vendor may be liable for any damages the State suffers as a result of the cancellation. A vendor may not make changes to its certified SDVOSB or VOSB commitments or substitute certified SDVOSBs or VOSBs without the prior written approval of the State.

44 Ill. Adm. Code 20.900 Violations by Vendor

Should a vendor violate the Code, this Part, or the terms of contracts let pursuant to this Program, the State may pursue any or all of the following actions:

a) A certified vendor may be decertified and an applicant for certification may be denied certification for reasons including, but not limited to:

Refusal to supply information sufficient for the Program or the Committee to make a determination for eligibility or continued eligibility;
Refusal to supply additional proof of eligibility for the Program, particularly after receiving a contract with the advance or progress payment (Special Assistance) provisions;
Accepting a contract with the advance or progress payment (Special Assistance) provisions when the vendor does not qualify for the Program; or
Any other violation of the Code or this Part.

b) The State, in consultation with the CPO's office, may cancel, without penalty to the State, any contract entered into by a vendor in violation of:

The Code or this Part;
The requirements of a contract let with the advance or progress payment (Special Assistance) provisions; or
Commitments regarding use of certified vendors, including, but not limited to, those in Section 20.540 (Sales Limitation; Exception) and Section 20.810 (Good Faith Efforts and Waiver Request Procedures).

c) In the case of a cancellation, the amount of profit applicable to amounts paid to the vendor shall be withheld from any amounts owed to the vendor. If the amount owed the vendor is insufficient to off-set profits, the vendor shall be liable to pay back to the State any balance of those profits. The profit rate shall be deemed 20% unless a lesser or greater amount can be conclusively proven.

d) Suspension of Vendor

The CPO or CMS, pursuant to the relevant statute, may suspend a vendor for a period of not less than 3 years and a contracting agency may cancel a contract for a violation of:

A) The Code or this Part;

B) The requirements of a contract let with the advance or progress payment (Special Assistance) provisions; or

C) Commitments regarding use of certified vendors, including, but not limited to, those in Section 20.540 (Sales Limitation; Exception) and Section 20.810 (Good Faith Efforts and Waiver Request Procedures).

Except for any person who commits a violation of Section 17-10.3 (Deception of a Public Agency) or 33E-6(d) (Interference with a Public Agency) of the Illinois Criminal Code of 2012 [720 ILCS 5], will be suspended for a period of not less than 3 years.

e) Depending on the seriousness of the violation, the suspension shall be:

From participation in the Program; or
From further contracting with the State.

f) A vendor may appeal any of the actions of the Committee taken pursuant to this Section in the same manner as a vendor denied certification (see Subpart G of this Part).

g) CMS shall notify the Chief Procurement Officers, State Purchasing Officers and other interested parties of SDVOSBs or VOSBs whose certification has been either suspended or revoked within 3 business days.

h) If any agency finds or suspects that a business is in violation of the Code or this Part, the violation should be reported to CMS immediately upon that finding.

i) Each State agency shall report to CMS any violations of Section 17-10.3 or 33E-6(d) of the Criminal Code of 2012. CMS shall monitor the status of reported violations of these statutes and subsequently report all such allegations to the Attorney General, who shall further determine whether to bring civil action against any person for the violation.

j) CMS shall monitor the status of all reported violations of Section 17-10.3 or 33E-6(d) of the Criminal Code of 2012.

k) If a person is suspended for violations of Section 17-10.3 or 33E-6(d) of the Criminal Code of 2012, 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 for the entire suspension period.

l) If a person is suspended for violations of Section 17-10.3 or 33E-6(d) of the Criminal Code of 2012 and is certified as a SDVOSB or VOSB, then CMS shall revoke the business' certification for a period not less than 3 years. An additional or subsequent violation shall extend the periods of suspension and revocation for a period not less than 5 years. The suspension and revocation shall apply to principals of the business and any subsequent business formed or financed by, or affiliated with, those principals.

Chapter V Commission on Equity and Inclusion

Part 30 Business Enterprise Program: Contracting with Businesses Owned and Controlled by Minorities, Females and Persons with Disabilities (transferred)

44 Ill. Adm. Code 30.5 Introduction

(Recodified from Section 10.5 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.10 Definitions

"Act" means the Business Enterprise for Minorities, Females, and Persons with Disabilities Act [30 ILCS 575].

"Department" means the Illinois Department of Central Management Services.

"BEP" or "Business Enterprise Program" means the activities conducted by the Council, Secretary and Department of Central Management Services pursuant to the Act.

"BEP Eligible" or "BEP Eligible Vendor" means an MBE, FBE or PBE.

"Council" means the public body established by the Act to implement and oversee implementation of the Business Enterprise Program.

"Eligible Group Member" means a person who meets the eligibility requirements set forth in Section 30.40(a).

"FBE" means a business owned and controlled by females in accordance with the requirements of the Act and this Part.

"MBE" means a business owned and controlled by minorities in accordance with the requirements of the Act and this Part.

"PBE" means a business owned and controlled by persons with disabilities in accordance with the requirements of the Act and this Part.

"Public Institutions of Higher Education" has the meaning provided in Section 2(A)(7) of the Act.

"Secretary" means the individual appointed to act as Secretary to the Council and to be manager of the BEP Division of the Department of Central Management Services.

"State Agency" has the meaning provided by Section 2(A)(6) of the Act.

"State Contract" has the meaning provided by Section 2(A)(5) of the Act.

(Recodified from Section 10.10 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.20 Goal

(Recodified from Section 10.20 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.21 Contracts and Expenditures Subject to the Goal

All contracts funded in whole or in part with funds appropriated by the General Assembly are subject to the goal unless exempted elsewhere in this Part.

(Recodified from Section 10.21 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.22 Categories of Contracts and Expenditures Exempt from Goal

a) Contracts shall be exempt from the goal if:

the contract is subject to federal reimbursement; or
receipt of funds for a contract would be jeopardized by including them in the Program.

Contracts between, or within, State agencies that do not include payments to private vendors:

A) University Central Data Processing Services;

B) University Central Plant Services;

C) University Central Supply Services;

D) University Central Telecommunication Services; and

E) University Central Transportation Services.

Contracts with or payments to other governmental entities:

A) Payments to Local Governments for Employees;

B) Reimbursements to Governmental Units;

C) Postage and Postal Charges;

D) Operating Taxes, Licenses and Fees;

E) Revenue Stamps;

F) Taxes and Transfers;

G) Fire Protection Services;

H) Shared Waterway Agreements; and

I) Shared Revenue Payments.

Employee wages, salary and other payroll and employee related costs:

A) Payments into Pension Funds;

B) Pensions, Annuities and Benefits;

C) Purchase of Investments;

D) Employee Tuition Fees;

E) Social Security;

F) Retirement;

G) Unemployment Compensation Payments;

H) Legislative Staff Services;

I) Registration Fees and Conference Expenses;

J) Workers' Compensation Commission Awards or Settlement Awards for Injured Employees; and

K) Awards, Benefits and Treatment Expenses − Injured Employees.

Payments of money to individuals or groups in the nature of reimbursement, settlement, entitlement, or assistance:

A) Assistance Payments to Individuals;

B) Awards and Grants to Students;

C) Burial Expense Awards;

D) Community Services for DHS-MH & DD and Chemically Dependent;

E) Court of Claims Awards;

F) Reimbursement for Living Expenses for State Wards Outside State Institutions;

G) Tuition, Training Supplies and Equipment for Aided Persons;

H) Lottery Prizes;

I) Interviewee Expenses; and

J) Tort Claims.

Debt retirement and refunds of money:

A) Debt Retirement;

B) Loans; and

C) Refunds.

Grants:

A) Grants for Educational Purposes − School Districts;

B) Grants for Educational Purposes − Higher Education;

C) Grants to Local Governments (other);

D) Grants to Non-Profit Organizations;

E) Grants to Other State Agencies; and

F) Grants to or on behalf of Veterans and their Dependents.

Public utility contracts and payments:

A) Electricity;

B) Gas (Natural Gas);

C) Telecommunications (regulated service only);

D) Water; and

E) Utilities (Other).

Real estate acquisition:

A) Land (Relocation Costs);

B) Land, Relocation Costs (Highways);

C) Land, Relocation Costs (Waterways);

D) Land, Rights of Way and Easements;

E) Land, Rights of Way and Easements (Highway); and

F) Land, Rights of Way and Easements (Waterways).

Miscellaneous contracts and expenditures:

A) Association Dues; and

B) Periodical Subscriptions.

(Recodified from Section 10.22 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.23 Council Review of Agency Requests for Specific Exemptions

A diligent effort requires, at a minimum, solicitation of appropriate vendors from the master vendor list maintained by the Council and advertising in appropriate media.
Whether the price quoted is reasonable shall be determined based upon current market prices, historic prices, prices received by other agencies for similar supplies or services, and the policy of the Business Enterprise Act to promote businesses owned by minorities, females and persons with disabilities.

(Recodified from Section 10.23 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.24 Goal Measurement

(Recodified from Section 10.24 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.25 Subcontracting

An agency may satisfy its goal, in whole or in part, by counting expenditures made by State vendors to certified BEP vendors as subcontractors.

(Recodified from Section 10.25 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.30 Agency Compliance

using stronger and better focused solicitation efforts to obtain more BEP eligible businesses as potential sources of supply;
division of job or project requirements, when economically feasible, into smaller, more manageable, tasks or quantities;
elimination of extended experience or capitalization requirements when programmatically feasible; and
identification of specific proposed contracts as particularly attractive or appropriate for participation by BEP eligible businesses.

(Recodified from Section 10.30 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.35 Professional and Artistic Contract Reporting

(Recodified from Section 10.35 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.40 Program Eligibility

a) Businesses owned and controlled by individuals in the following eligible groups may submit applications for certification:

African American – a person having origins in any of the black racial groups in Africa.
Hispanic – a person of Spanish or Portuguese culture with origins in Mexico, South or Central American or the Caribbean (regardless of race).
American Indian or Alaskan Native – a person having origins in any of the original people of North America.
Asian American – a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent or the Pacific Islands.
Female – a person who is a citizen or lawful, permanent resident of the United States, and who is of the female gender.
Person with a disability.

(Recodified from Section 10.40 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.50 General

d) A business owned and controlled by minority females shall designate whether the business will be certified as FBE or MBE.

(Recodified from Section 10.50 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.55 Program Information

(Recodified from Section 10.55 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.60 Application

(Recodified from Section 10.60 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.61 Applicant Requirements

(Recodified from Section 10.61 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.62 Time to Determine Eligibility

(Recodified from Section 10.62 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.63 Certification by Other Certifying Entities

The other entities must agree to notify the Secretary should their requirements or procedures change in any material way. The Secretary shall periodically meet with the other certifying entities to help ensure Council requirements and procedures are being met.
If the other entities' requirements or procedures no longer equal or exceed the requirements and procedures of the Act or this Part, the Council will no longer accept those certifications. However, the Council will continue to honor previously accepted certifications until the Secretary reviews each one and, if necessary, revokes those that do not meet the requirements of the Act and this Part.
The other entities must agree to report any denial of certification or recertification to the Council, along with detailed reasons for that action.

(Recodified from Section 10.63 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.64 Sales Limitation; Exception

In determining the annual gross sales, sales of any affiliated business shall also be counted.
An affiliated business is one related to the other by virtue of significant commonality of management, or commonality of ownership (at least 5% of one company owned by owner or management personnel of the other). Other factors that may be considered in determining affiliation include, but are not limited to, sharing of office space, workers or equipment.

For the impact to be significant in terms of employment, the business would have to hire new employees to perform the work of the contract and at least 51% of those new hires must be minority, female or persons with disabilities.
For the impact to be significant in terms of use of subcontractors or suppliers, the business must direct 51% of the value of the contract to BEP certified vendors as subcontractors or suppliers.

(Recodified from Section 10.64 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.65 Citizenship/Permanent Residency

a) The individuals claiming ownership and control of the applicant business must be citizens or lawful permanent residents of the United States.

b) Proof of citizenship or permanent residency must be confirmed by a birth certificate, naturalization papers, permanent resident status documents, passports or other documents.

(Recodified from Section 10.65 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.66 Ownership/Control by Members of Eligible Groups

a) The individuals claiming ownership and control of the applicant business must be members of the eligible groups identified in Section 30.40(a) of this Part.

(Recodified from Section 10.66 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.67 Ownership

a) The individuals claiming ownership and control of the applicant business must own at least 51% of the business.

How ownership was obtained, including, but not limited to, purchase, gift or inheritance.
How substantial was the contribution toward ownership in terms of expertise, money, or other such factors? The following are some examples of factors that may indicate insufficient contribution:

A) minimal cash outlay or personal investment;

B) a promise or agreement to contribute capital;

C) a note payable to the firm or other owners who are not eligible group members;

D) contributions for services rather than capital, except where services are unique, specialized or of a value commensurate with the ownership value of such services;

E) payment of contribution with funds loaned by a non-eligible group, former employer or stockholder;

F) no recourse loans where the borrower assumes no liability for repayment upon default; and

G) no recourse stock purchases wherein the purchaser assumes no liability upon default of payment other than transaction of shares.

How the applicant holds ownership. In terms of stock holdings, the following are factors that may indicate ownership is not as stated:

A) minimal cash outlay or personal investment;

B) a promise or agreement to buy stock;

C) stock issued, but not purchased;

D) stock certificates purchased but not in the possession of the applicant; or

E) stock held in trust.

The applicant must provide documentary proof of ownership, including, but not limited to, the following:

A) canceled checks or bookkeeping entries;

B) signed purchase agreements;

C) stock certificates, transfer ledgers and stockholder agreements;

D) partnership agreements;

E) profit sharing agreements; and

F) buy-out-right agreements.

(Recodified from Section 10.67 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.68 Control

a) Ownership by eligible group members does not equate to control.

Do the articles of incorporation show the eligible group owners were involved at the time of incorporation and in what way? If the eligible group owners were not involved at the time of incorporation, when did they become involved?
Corporate by-laws will be reviewed to determine:

A) the duties of the directors and officers who occupy these positions;

B) the voting rights of the shareholders; and

C) any restrictive language that may affect the eligible group owner's stock voting rights.

Are there any stock options/shareholders agreements that, if exercised, will dilute or eliminate eligible group owner control?
Do the eligible group owners make decisions independently?
Does a review of resumes show the eligible group owners have sufficient background, including education and training, to run the particular business and for the responsibilities assigned?
Do the eligible group owners continue to work for a firm not eligible for the BEP, and if so, what is the relationship of the firm to the applicant business?
Who in the firm negotiates contracts and loans, prepares estimates and makes other management and supervisory decisions?

(Recodified from Section 10.68 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.69 Notice of Certification or Denial

a) Notification of Certification

When the Secretary has determined that the applicant meets the requirements of the Act and this Part, the Secretary will notify the applicant by letter that it has been certified.

b) Notification of Denial of Certification

c) Effect of Denial

d) Reapplication

If a certification application is denied, the business may reapply one year after the date of denial. Applications submitted prior to that date will not be considered.

(Recodified from Section 10.69 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.70 Review and Reconsideration

j) The Secretary will schedule the review at the earliest convenience of the Council. The applicant will be told of the location, date and time of the meeting.

n) If the decision is adverse to the applicant, the Council shall inform the Secretary. The Secretary shall notify the applicant.

o) If the decision is to send the matter back to the Committee, the process shall continue from that point until resolved at the Committee or Council level.

(Recodified from Section 10.70 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.71 Decertification Process

a) The State, or a third-party, may challenge the certification status of a business at any time.

(Recodified from Section 10.71 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.72 Annual Confirmation of Eligibility

e) Upon receipt of the notice of final revocation, the certified business may submit a new and complete application for certification.

f) In addition to the annual confirmation, the Secretary may require confirmation of eligibility at any time during the term of certification.

(Recodified from Section 10.72 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.80 Special Assistance

a) Purchasing agencies may waive or reduce bond requirements for certified vendors when allowed by law and when the reduced bond amount would adequately protect the State's interests.

(Recodified from Section 10.80 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.90 Change in Eligibility

a) Any contract awarded with Section 10.80 provisions may not be assigned to another vendor without approval of the Secretary.

b) Should a vendor who received a contract with Section 30.80 provisions cease to qualify as a BEP vendor during contract performance, the purchasing agency may cancel the contract immediately without penalty to the State.

c) Any change in the eligibility status of a vendor awarded a contract with Section 30.80 provisions shall be reported to the Council by both the vendor and the purchasing agency.

(Recodified from Section 10.90 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.91 Contract Commitment; Good Faith Effort

a) A vendor who obtains a contract requiring hiring of BEP certified vendors, such as pursuant to Section 30.64, or who makes a voluntary contractual commitment to hire BEP certified vendors, and who fails to do so, is subject to having the contract canceled. If the agency cancels the contract, the vendor may be liable for any damages the State suffers as a result of the cancellation. The State may excuse the vendor's failure if the vendor can show a good faith effort to remain in compliance.

contacting the Business Enterprise Bureau at least 15 days prior to need and requesting referrals from the certified vendor list and from any other list maintained by the Bureau;
advertising in the Official State Newspaper or a local newspaper as time permits; and
contacting appropriate organizations such as unions, contractor associations, and MBE, FBE, or PBE oriented organizations.

c) If a good faith exception is given, the purchasing agency shall notify the Secretary of the exception and shall include all pertinent information.

(Recodified from Section 10.91 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.100 Violations by Vendor

Should a vendor violate the Act, this Part, or the terms of contracts let pursuant to this Program, the State may pursue any or all of the following actions.

a) A certified vendor may be decertified and an applicant for certification may be denied certification for reasons including, but not limited to:

refusal to supply information sufficient for the Secretary or the Council to make a determination for eligibility or continued eligibility;
refusal to supply additional proof of eligibility for the Program, particularly after receiving a contract with Section 30.80 (Special Assistance) provisions;
accepting a contract with Section 30.80 (Special Assistance) provisions when the vendor does not qualify for the Program; or
any other violation of the Act or this Part.

b) The State may cancel, without penalty to the State, any contract entered into by a vendor in violation of:

the Act or this Part;
the requirements of a contract let with Section 30.80 (Special Assistance) provisions; or
commitments regarding use of certified vendors, including, but not limited to, those in Section 30.64 (Sales Limitation; Exception) and Section 30.91 (Contract Commitment; Good Faith Effort).

d) The Secretary may suspend a vendor from the program for a period of no more than one year and a contracting agency may cancel a contract for a violation of:

the Act or this Part;
the requirements of a contract let with Section 30.80 (Special Assistance) provisions; or
commitments regarding use of certified vendors, including, but not limited to, those in Section 30.64 (Sales Limitation; Exception) and Section 30.91 (Contract Commitment; Good Faith Effort).

e) Depending on the seriousness of the violation, the suspension shall be:

from participation in the BEP Program; or
from further contracting with the State.

f) A vendor may appeal any of the actions of the Council taken pursuant to this Section in the same manner as a vendor denied certification (see Subpart G of this Part).

g) The Secretary shall notify the Chief Procurement Officers, State Purchasing Officers and other interested parties of the revocation of certification or of suspension.

h) If any agency finds or suspects that a business is in violation of the Act or of this Part, the violation should be reported to the Secretary as soon as practicable after the finding.

(Recodified from Section 10.100 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.200 Purpose

This Subpart is intended:

a) to set forth the practice and procedures to be followed for the establishment and continuation of narrowly tailored sheltered markets under Section 8b of the Act;

c) to establish procedures by which the Council consults interested or affected segments of the public;

d) to enable the Department to fully consider and respond to evidence regarding past or present racial, gender or disability-based discrimination present presented to the Council;

f) to foster openness among the Department, other governmental bodies, and the public; and

g) to comply with State and federal requirements.

(Recodified from Section 10.200 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.201 Applicability

(Recodified from Section 10.201 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.202 Evidence of Discrimination

c) The Secretary shall investigate and make recommendations to the Council concerning the use of the sheltered market process.

(Recodified from Section 10.202 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.203 Establishment and Adjustment of Sheltered Markets

The Council must vote to establish or adjust an existing sheltered market by a majority vote.
The Council shall only vote to establish sheltered markets when other feasible remedial measures are insufficient to address the discrimination; provided, however, that there shall be no requirement to exhaust all potential remedial measures before establishing sheltered markets.

(Recodified from Section 10.203 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.204 Sheltered Market Procurements

(Recodified from Section 10.204 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

44 Ill. Adm. Code 30.205 Participation Eligibility

a) Participation in any sheltered market solicitation shall be limited to BEP certified vendors.

d) Any subcontractors utilized on a sheltered market procurement shall be BEP certified vendors.

(Recodified from Section 10.205 of 44 Ill. Adm. Code 10 (Central Management Services) pursuant to P.A. 101-657, at 47 Ill. Reg. 279)

Part 40 Service-Disabled and Veteran-Owned Small Businesses

44 Ill. Adm. Code 40.10 Introduction

(Recodified from Section 20.10 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.20 Definitions

"CMS" refers to the Department of Central Management Services.

"Eligible Group Member" means a person who meets the eligibility requirements set forth in Section 20.300.

"Illinois Procurement Code" or "Code" means 30 ILCS 500.

"Service-Connected Disability" means a disability incurred in the line of duty in the active military, naval, or air service as described in 38 USC 101(16). [30 ILCS 500/45-57(e)]

"Utilization Plan" means a plan that describes how the bidder/offeror intends to utilize SDVOSBs or VOSBs to meet the State goal in a solicitation.

the veteran served a total of at least 6 months;

the veteran served for the duration of hostilities regardless of the length of the engagement;

the veteran was discharged on the basis of hardship; or

the veteran was released from active duty because of a service connected disability and was discharged under honorable conditions. [30 ILCS 500/45-57(e)]

"Veterans Small Business Program" or "Program" means the State's program that:

fosters economic opportunities for Illinois' military veterans by encouraging the establishment of SDVOSBs and VOSBs; and

(Recodified from Section 20.20 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.100 Goal

(Recodified from Section 20.100 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.110 Contracts and Expenditures Subject to the Goal

All contracts funded in whole or in part with funds appropriated by the General Assembly are subject to the goal unless exempted elsewhere in this Part.

(Recodified from Section 20.110 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.120 Categories of Contracts and Expenditures Exempt from the Goal

a) Contracts shall be exempt from the goal if:

The contract is subject to federal reimbursement; or
Receipt of funds for a contract would be jeopardized by including them in the Program.

Contracts between, or within, State agencies that do not include payments to private vendors.
Contracts with or payments to other governmental entities:

A) Payments to Local Governments for Employees;

B) Reimbursements to Governmental Units;

C) Postage and Postal Charges;

D) Operating Taxes, Licenses and Fees;

E) Revenue Stamps;

F) Taxes and Transfers;

G) Fire Protection Services;

H) Shared Waterway Agreements; and

I) Shared Revenue Payments.

Employee wages, salaries and other payroll and employee related costs:

A) Payments into Pension Funds;

B) Pensions, Annuities and Benefits;

C) Purchase of Investments;

D) Employee Tuition Fees;

E) Social Security;

F) Retirement;

G) Unemployment Compensation Payments;

H) Legislative Staff Services;

I) Registration Fees and Conference Expenses;

J) Industrial Commission Awards or Settlement Awards for Injured Employees; and

K) Awards, Benefits and Treatment Expenses − Injured Employees.

Payments of money to individuals or groups in the nature of reimbursement, settlement, entitlement or assistance:

A) Assistance Payments to Individuals;

B) Awards and Grants to Students;

C) Burial Expense Awards;

D) Community Services for Department of Human Services- Divisions of Mental Health and Developmental Disabilities Clients and the Chemically Dependent;

E) Court of Claims Awards;

F) Reimbursement for Living Expenses for State Wards Outside State Institutions;

G) Tuition, Training Supplies and Equipment for Aided Persons;

H) Lottery Prizes;

I) Interviewee Expenses; and

J) Tort Claims.

Debt retirement and refunds of money:

A) Debt Retirement;

B) Loans; and

C) Refunds.

Grants:

A) Grants for Educational Purposes − School Districts;

B) Grants for Educational Purposes − Higher Education;

C) Grants to Local Governments (other);

D) Grants to Non-Profit Organizations;

E) Grants to Other State Agencies; and

F) Grants to or on Behalf of Veterans and their Dependents who Qualified under Wartime Service.

Public utility contracts and payments:

A) Electricity;

B) Gas (Natural Gas);

C) Telecommunications (regulated service only);

D) Water; and

E) Utilities (Other).

Real estate acquisition:

A) Land, Relocation Costs;

B) Land, Relocation Costs (Highways);

C) Land, Relocation Costs (Waterways);

D) Land, Rights of Way and Easements;

E) Land, Rights of Way and Easements (Highway); and

F) Land, Rights of Way and Easements (Waterways).

Miscellaneous contracts and expenditures:

A) Association Dues; and

B) Periodical Subscriptions.

(Recodified from Section 20.120 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.130 Review of Agency Requests for Specific Exemptions

d) A construction agency may exempt specific contracts from the goal if it documents reasonable proof that certified SDVOSBs and VOSBs are not available to meet the contracting need.

(Recodified from Section 20.130 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.140 Goal Measurement

(Recodified from Section 20.140 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.150 Subcontracting

An agency may satisfy its goal, in whole or in part, by counting expenditures made by State vendors to certified SDVOSBs and VOSBs as subcontractors.

(Recodified from Section 20.150 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.200 Agency Compliance and Reporting

a) All State agencies, including the construction agencies, shall report to the Committee and CMS each quarter all of the following:

The aggregate amount of dollars spent on State contracts with SDVOSBs and VOSBs;
The number of approved memorandums exempting specific contracts from the goal and the reason for the exemption; and
The number of good faith effort waivers granted.

The total number of SDVOSBs, and the number of VOSBs, who submitted bids and/or proposals under this Part.
The total number of SDVOSBs, and the number of VOSBs, who entered into contracts with the State under this Part and the total value of those contracts. [30 ILCS 500/45-57(b)]

(Recodified from Section 20.200 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.300 Program Eligibility

To qualify as a SDVOSB or VOSB:

a) The business must be owned and controlled by veterans and/or service-disabled veterans;

b) It must be a small business that does not exceed the sales limitation established in the definition in Section 20.20;

c) It must be an authorized business registered within the State of Illinois;

d) Qualified veterans who are Illinois residents must hold 51% of ownership of the business; and

e) The business home office must be in the State of Illinois.

(Recodified from Section 20.300 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.400 General

CMS will certify an entity, business or firm that meets the requirements listed in this Part. All certifications, new and existing, shall be valid for a period of 5 years from the effective date of the certification, subject to annual confirmation.
Only certified SDVOSBs and VOSBs are eligible for the benefits of the Program. Agencies may count only those expenditures with a certified business or certified business subcontractor toward meeting the goal.
A business owned and controlled by at least 51% service-disabled veterans and veterans shall be counted as a business owned and controlled by the eligible group that has the largest percentage of ownership.

(Recodified from Section 20.400 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.410 Program Information

a) CMS shall compile a list of businesses certified under the Code and may compile and maintain other information regarding the Program, including general vendor lists.

c) The list shall be available to the Chief Procurement Officers and State Purchasing Officers defined in the Code and to other interested State agencies for use in State purchasing.

d) The list of certified businesses shall be available to the public. This list and other information shall be provided electronically via the CMS website (http://www2.illinois.gov/cms/business/).

(Recodified from Section 20.410 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.500 Application

(Recodified from Section 20.500 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.510 Application Requirements

(Recodified from Section 20.510 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.520 Eligibility Determination

(Recodified from Section 20.520 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.530 Certification by Other Certifying Entities

b) CMS shall investigate requirements and procedures of other certifying entities and shall maintain a list of those certifying entities whose certifications can be accepted.

CMS may periodically meet with the other certifying entities to ensure compliance.
If the other entities' requirements or procedures no longer equal or exceed the requirements and procedures of CMS, CMS will no longer accept those certifications.
Applicants must immediately report the denial/loss of certification or recertification by another certifying entity to CMS, along with detailed reasons for the action.

(Recodified from Section 20.530 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.540 Sales Limitation; Exception

a) Annual gross sales must be less than $75 million. In determining the annual gross sales, sales of any affiliated business shall also be counted.

(Recodified from Section 20.540 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.550 State Residency

b) Qualifying SDVOSBs or VOSBs must provide proof that they have a home office in the State of Illinois.

(Recodified from Section 20.550 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.560 Ownership/Control by Members of Eligible Groups

a) Individuals claiming ownership and control of the applicant business must be members of the eligible groups identified in Section 40.300.

(Recodified from Section 20.560 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.570 Ownership

a) The individuals claiming ownership and control of the applicant business must own at least 51% of the business.

How ownership was obtained, including, but not limited to, purchase, gift or inheritance.
How substantial was the contribution toward ownership in terms of expertise, money or other such factors? The following are some examples of factors that may indicate insufficient contribution:

A) Minimal cash outlay or personal investment;

B) A promise or agreement to contribute capital;

C) A note payable to the firm or other owners who are not eligible group members;

D) Contributions for services rather than capital, except when services are unique, specialized or of a value commensurate with the ownership value of the services;

E) Payment of contribution with funds loaned by a non-eligible group, former employer or stockholder;

F) No recourse loans when the borrower assumes no liability for repayment upon default; and

G) No recourse stock purchases in which the purchaser assumes no liability upon default of payment other than transaction of shares.

How the applicant holds ownership. In terms of stock holdings, the following are factors that may indicate ownership is not as stated:

A) Minimal cash outlay or personal investment;

B) A promise or agreement to buy stock;

C) Stock issued, but not purchased;

D) Stock certificates purchased but not in the possession of the applicant; or

E) Stock held in trust.

The applicant must provide documentary proof of ownership, including, but not limited to, the following:

A) Canceled checks or bookkeeping entries;

B) Signed purchase agreements;

C) Stock certificates, transfer ledgers and stockholder agreements;

D) Partnership agreements;

E) Profit sharing agreements; and

F) Buy-out-right agreements.

(Recodified from Section 20.570 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.580 Control

a) Ownership by eligible group members does not equate to control.

b) The individuals claiming ownership and control of the applicant business must actually control the applicant business. Those individuals must be in direct control of the day to day operations and must have, and exercise, the power to make major decisions on management, policy, fiscal and operational matters. At a minimum, the following factors will be considered in determining control:

Do the articles of incorporation show the eligible group owners were involved at the time of incorporation and in what way? If the eligible group owners were not involved at the time of incorporation, when did they become involved?
Corporate by-laws will be reviewed to determine:

A) The duties of the directors and officers who occupy these positions;

B) The voting rights of the shareholders; and

C) Any restrictive language that may affect the eligible group owner's stock voting rights.

Are there any stock options/shareholders agreements that, if exercised, will dilute or eliminate eligible group owner control?
Do the eligible group owners make decisions independently?
Does a review of resumes show the eligible group owners have sufficient background, including education and training, to run the particular business and for the responsibilities assigned?
Do the eligible group owners continue to work for a firm not eligible to be certified SDVOSBs or VOSBs and, if so, what is the relationship of the firm to the applicant business?
Who in the firm negotiates contracts and loans, prepares estimates and makes other management and supervisory decisions?

(Recodified from Section 20.580 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.590 Notice of Certification or Denial

a) Notification of Certification

When CMS has determined that the applicant meets the requirements of this Part, CMS will notify the applicant in writing that it has been certified.

b) Notification of Denial of Certification

c) Effect of Denial

After all reconsiderations and reviews provided in this Part have been exhausted, if the decision remains to deny certification, the vendor will not be included in the list of certified vendors.

d) Reapplication

If a certification application is denied, the business may reapply one year after the date of denial. Applications submitted prior to that date will not be considered.

(Recodified from Section 20.590 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.600 Review and Reconsideration

c) The Committee (see Section 40.20) shall consider any requested appeal reviews from CMS. CMS will attempt to schedule a Committee meeting within 30 days after receipt of the request for review. The meeting may be held in Chicago or Springfield and CMS will notify the applicant at least 10 days prior to the meeting of the location, date and time.

(Recodified from Section 20.600 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.610 Decertification Process

a) The State, or a third-party, may challenge the certification status of a SDVOSB or VOSB at any time.

(Recodified from Section 20.610 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.620 Annual Confirmation of Eligibility

e) Upon receipt of the notice of final decertification, the decertified business must submit a new and complete application for certification.

f) In addition to the annual confirmation, CMS may require confirmation of eligibility at any time during the term of certification.

(Recodified from Section 20.620 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.700 Special Assistance

a) Purchasing agencies may waive or reduce bond requirements for certified vendors when allowed by law and when the reduced bond amount would adequately protect the State's interests.

(Recodified from Section 20.700 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.800 Change in Eligibility

a) Any contract awarded to a SDVOSB or VOSB may not be assigned to another vendor without approval of the CPO, in consultation with CMS.

(Recodified from Section 20.800 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.810 Good Faith Efforts and Waiver Request Procedures

Utilize the Sell2Illinois website (www.Sell2.illinois.gov) to identify certified SDVOSBs or VOSBs.
Soliciting through all reasonable and available means (e.g., attendance at a vendor conference, advertising and/or written notices) the interest of certified SDVOSBs or VOSBs that have the capability to perform the work of the contract. The Vendor must solicit this interest within sufficient time to allow certified SDVOSBs or VOSBs to respond to the solicitation. The vendor must determine with certainty if the certified SDVOSBs or VOSBs are interested by taking appropriate steps to follow up initial solicitations and encourage them to submit a bid or proposal. The vendor must provide interested certified SDVOSBs or VOSBs with adequate information about the plans, specifications and requirements of the contract in a timely manner to assist them in responding promptly to the solicitation.
Selecting portions of the work to be performed by certified SDVOSBs or VOSBs in order to increase the likelihood that the goal will be achieved. This includes, when appropriate, breaking out contract work items into economically feasible units to facilitate certified SDVOSBs or VOSBs participation, even when the vendor might otherwise prefer to perform these work items with its own forces.
Making a portion of the work available to certified SDVOSBs or VOSBs and selecting those portions of the work or material needs consistent with their availability, so as to facilitate certified SDVOSBs or VOSBs participation. Availability may include considerations of how the location of the SDVOSBs or VOSBs would affect the performance or cost of the contract.
Negotiating in good faith with interested certified SDVOSBs or VOSBs. Evidence of such negotiation must include the names, addresses and telephone numbers of certified SDVOSBs or VOSBs 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 certified SDVOSBs or VOSBs to perform the work. A vendor using good business judgment may consider a number of factors in negotiating with certified SDVOSBs or VOSBs and may take a firm's price and capabilities into consideration. The fact that there may be some additional costs involved in finding and using certified SDVOSBs or VOSBs may not be in itself sufficient reason for a vendor's failure to meet the goal, as long as such costs are reasonable. Vendors are not required to accept higher quotes from certified SDVOSBs or VOSBs if the price difference is excessive or unreasonable.
Thoroughly investigating the capabilities of certified SDVOSBs or VOSBs and not rejecting them as unqualified without documented reasons.
Making efforts to assist interested certified SDVOSBs or VOSBs in obtaining lines of credit or insurance as required by the State.
Making efforts to assist interested certified SDVOSBs or VOSBs in obtaining necessary equipment, supplies, materials, or related assistance or services.

(Recodified from Section 20.810 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

44 Ill. Adm. Code 40.900 Violations by Vendor

Should a vendor violate the Code, this Part, or the terms of contracts let pursuant to this Program, the State may pursue any or all of the following actions:

a) A certified vendor may be decertified and an applicant for certification may be denied certification for reasons including, but not limited to:

Refusal to supply information sufficient for the Program or the Committee to make a determination for eligibility or continued eligibility;
Refusal to supply additional proof of eligibility for the Program, particularly after receiving a contract with the advance or progress payment (Special Assistance) provisions;
Accepting a contract with the advance or progress payment (Special Assistance) provisions when the vendor does not qualify for the Program; or
Any other violation of the Code or this Part.

b) The State, in consultation with the CPO's office, may cancel, without penalty to the State, any contract entered into by a vendor in violation of:

The Code or this Part;
The requirements of a contract let with the advance or progress payment (Special Assistance) provisions; or
Commitments regarding use of certified vendors, including, but not limited to, those in Section 40.540 (Sales Limitation; Exception) and Section 40.810 (Good Faith Efforts and Waiver Request Procedures).

d) Suspension of Vendor

The CPO or CMS, pursuant to the relevant statute, may suspend a vendor for a period of not less than 3 years and a contracting agency may cancel a contract for a violation of:

A) The Code or this Part;

B) The requirements of a contract let with the advance or progress payment (Special Assistance) provisions; or

Except for any person who commits a violation of Section 17-10.3 (Deception of a Public Agency) or 33E-6(d) (Interference with a Public Agency) of the Illinois Criminal Code of 2012 [720 ILCS 5], will be suspended for a period of not less than 3 years.

e) Depending on the seriousness of the violation, the suspension shall be:

From participation in the Program; or
From further contracting with the State.

f) A vendor may appeal any of the actions of the Committee taken pursuant to this Section in the same manner as a vendor denied certification (see Subpart G of this Part).

h) If any agency finds or suspects that a business is in violation of the Code or this Part, the violation should be reported to CMS immediately upon that finding.

j) CMS shall monitor the status of all reported violations of Section 17-10.3 or 33E-6(d) of the Criminal Code of 2012.

(Recodified from Section 20.900 of 44 Ill. Adm. Code 20 (Central Management Services) pursuant to Section 45-57 of the Illinois Procurement Code [30 ILCS 500/45-57], at 47 Ill. Reg. 12484)

Chapter I Auditor General

Part 500 Purchases and Contracts

44 Ill. Adm. Code 500.10 Title

This Part may be cited as the Office of the Auditor General (OAG) Procurement Rules.

44 Ill. Adm. Code 500.20 Policy

All OAG procurements shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with statute, this Part and other applicable rules.

44 Ill. Adm. Code 500.30 Application

a) This Part applies to all procurements by the OAG with a solicitation date on or after the effective date of this Part with the exception of the following:

contracts between the State and its political subdivisions or other governments, or between State governmental bodies except as specifically provided in this Part;
grants;
purchase of care;
hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual;
collective bargaining contracts;
purchase of real estate; or
contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the OAG chief legal counsel shall give his or her prior approval. Anticipated litigation is that which the OAG may prosecute or defend before a court or administrative body and actions necessary to prepare for and conduct the effective legal prosecution or defense of litigation, including, but not limited to, the retention of counsel, investigators, expert witnesses and court reporters.

b) Nothing in this Part shall be construed to affect or impair any contract, or any provision of a contract, entered into based on a solicitation prior to the effective date of this Part.

44 Ill. Adm. Code 500.40 Definition of Terms Used in This Part

As used throughout this Part, each term listed in this Section shall have the meaning set forth below unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in that Section.

"Amendment" − A written modification to a contract provision, as permitted by the original contract.

"Award" − The determination that a particular vendor has been selected from among other potential vendors to enter into negotiations for the purpose of finalizing a contract.

"Bid" − The response to an Invitation for Bids.

"Bidder" − The person or entity submitting a bid.

"Brand Name or Equal Specification" − A specification that uses one or more manufacturer's names or catalog numbers to describe the standard of quality, performance, and other characteristics needed to meet OAG requirements, and that allows the submission of equivalent products.

"Brand Name Specification" − A specification limited to one or more items by manufacturers' names or catalog numbers.

"CMS" − The Department of Central Management Services.

"Code" − The Illinois Procurement Code [30 ILCS 500].

"Consulting Services" − Services provided by a business or person as an independent contractor to advise and assist the OAG in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of a State agency. The services may or may not rise to the level of professional and artistic as defined in this Part.

"Contractor" or "Vendor" − The terms contractor and vendor are used interchangeably for purposes of this Part. When appropriate, the term "vendor" shall also include subcontractors.

"Day" − Calendar day. In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a State holiday, in which event the period shall run to the end of the next business day.

"Invitation for Bids" or "IFB" − The process by which the OAG requests information from bidders, including all documents, whether attached or incorporated by reference, used for soliciting bids.

"Items" − Anything that may be procured under this Part.

"OAG" − The Office of the Auditor General.

"Offer" − A bid, proposal or response solicited by the OAG.

"Offeror" − The person or entity submitting a bid, proposal or response solicited by the OAG. A person or entity (other than an individual acting as a sole proprietor) may qualify as a bidder or offeror only if the person or entity is a legal entity authorized to do business in Illinois prior to submitting the bid, offer or proposal.

"Procurement Officer" − One or more OAG employees who serve at the direction of the Chief Procurement Officer of the OAG (CPO) and are responsible for conducting OAG procurement activity.

"Proposal" − The response to a Request for Proposals.

"Proposer" − The person or entity submitting a proposal.

"Qualified Products List" − An approved list of supplies described by model or catalog numbers that, prior to competitive solicitation, the OAG has determined will meet the applicable specification requirements.

"Request for Information" or "RFI" − The process by which the OAG requests information from offerors for OAG contracts for leases of real property or capital improvements.

"Request for Proposals" or "RFP" − The process by which the OAG requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals.

"Respondent" − The person or entity submitting a response to a Request for Information from the OAG.

"Response" − A response to a Request for Information.

"Responsible Offeror" − A person or entity that is capable in all respects of performing fully the contract requirements and has the integrity and reliability that will assure good faith performance. A responsible bidder or offeror shall not include a business or other entity that does not exist as a legal entity at the time a bid, proposal or offer is submitted for a State contract.

"Responsive Offeror" − A person or entity that has submitted an offer conforming in all material respects to the solicitation.

"Service" − The furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance and the financing thereof.

"Solicitation" − An Invitation for Bids, Request for Proposals or Request for Information.

"Specification for a Common or General Use Item" − A specification that has been developed and approved for repeated use in procurements.

"Subcontract" – A contract with a total value of more than $50,000 between a person or entity and another person or entity who has a State contract, pursuant to which the subcontractor provides to the contractor, or, if the subcontract price is more than $50,000, another subcontractor some or all of the supplies, services, real property, remuneration or other monetary forms of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency. For purposes of this Part, a "subcontract" does not include purchases of supplies that are incidental to the performance of a contract by a person who has a contract subject to this Part.

"Subcontractor" – A person or entity that enters into a contractual agreement with a total value of more than $50,000 with a person or entity who has a contract with the OAG pursuant to which the person or entity provides some or all of the supplies, services, real property, remuneration or other monetary forms of consideration that are the subject of the primary OAG contract, including subleases from a lessee of a State contract. For purposes of this Part, a person or entity is not a "subcontractor" if that person only provides supplies that are incidental to the performance of a contract by a person who has a contract subject to this Part.

"Supplies" − All personal property, including but not limited to equipment, materials, printing, and insurance, and the financing of those supplies that can be procured regularly or are available on the commercial market.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.50 Property Rights

No person shall have any right to a specific contract with the State unless that person has a contract that has been signed by an officer or employee of the purchasing agency with appropriate signature authority. The State shall be under no obligation to issue an award or execute a contract. [30 ILCS 500/1-25] No person who participates in a procurement action has any right to an award or a subsequent contract. Receipt of a solicitation or procurement document, or submission of any response to a solicitation or other procurement request, solicited or otherwise, confers no right to receive an award or contract, nor does it obligate the State in any manner.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.60 Department of Central Management Services

a) To the extent practicable and available, the OAG may obtain the following supplies and services from or through CMS or another State agency with appropriate procurement authority without soliciting independent bids, proposals or responses:

employee benefits authorized under the State Employees Group Insurance Act or other law;
financing of any procurement;
paper, stationery and envelopes, and any other supplies or services available from the Paper and Printing Warehouse;
postage stamps;
property, casualty, liability and other insurance and bonds;
telecommunications equipment, services and software;
utilities;
vehicles and vehicle services, including fleet management and repairs;
electronic data processing services, including Central Computing Facility services;
leases of real estate and any capital improvements to leased real estate for OAG use; and
any other supplies and services, including those available through master, scheduled or open-ended contracts established by CMS or another State agency with appropriate procurement authority.

b) The CPO may submit purchase requests to CMS or another State agency with appropriate procurement authority in accordance with applicable rules.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.70 Capital Development Board

Any construction or construction-related professional and artistic services in excess of the small purchase threshold for construction, found on the Illinois Procurement Policy Board website (ppb.illinois.gov) and updated annually, necessary for the OAG will be procured by the CPO of the Capital Development Board or by any other appropriate State agency CPO. Any request for such services will be submitted to the appropriate CPO in accordance with applicable rules. In the event of an emergency, the CPO may arrange for such construction as is necessary to protect the property and records of the OAG pending the making of arrangements with the appropriate State agency CPO.

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.100 Conduct of Procurements

The Auditor General or his or her designee shall serve as Chief Procurement Officer (CPO) for purposes of this Part, and may conduct any or all procurements for the OAG. The CPO may appoint one or more Procurement Officers to conduct procurements on behalf of the CPO in accordance with conditions specified in the terms of the appointment and this Part.

44 Ill. Adm. Code 500.110 Small Business Specialist

The CPO, subject to the Auditor General's approval, may designate an OAG employee with experience negotiating contracts to serve as the Small Business Specialist.

44 Ill. Adm. Code 500.200 Auditor General Volume of Illinois Procurement Bulletin

The Auditor General Volume of the Illinois Procurement Bulletin (Auditor General Bulletin) will contain procurement information relating to procurements under the responsibility of the OAG.

44 Ill. Adm. Code 500.210 Publication of Auditor General Bulletin

The Auditor General Bulletin will be published electronically and will be updated as needed. The Auditor General Bulletin can be found on the Auditor General's website at http://www.auditor.illinois.gov.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.220 Required Use of Auditor General Bulletin

Notice of any procurement action required by this Part to be publicized will be published in the Auditor General Bulletin.

44 Ill. Adm. Code 500.230 Supplemental Notice

The OAG may place advertisements in the Official State Newspaper selected by CMS or other publications to supplement notice in the Auditor General Bulletin. In the event the Auditor General Bulletin cannot be published, the Official State Newspaper may be used as a substitute for the Auditor General Bulletin.

44 Ill. Adm. Code 500.240 Error in Notice

When a required publication contains an error, the error may be corrected by a single notice published in the Auditor General Bulletin.

44 Ill. Adm. Code 500.250 Direct Solicitation

In addition to giving notice in the Auditor General Bulletin, if required, the OAG may directly contact prospective vendors. Direct solicitation may be oral or in writing, but care should be taken to ensure that all vendors solicited in this manner receive the same information. No direct solicitation shall be made prior to the date any required notice first appears in the Auditor General Bulletin.

44 Ill. Adm. Code 500.260 Retention of Bulletin Information

Information published in the Auditor General Bulletin shall be retained in electronic or paper form for a period of one year after first publication.

History

Source: Added at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.300 General Provisions

a) Late Offers, Late Withdrawals and Late Modifications

Any bid, proposal, modification or withdrawal received after the time and date for receipt, or at other than the specified location, is late. A submission that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered, but the OAG shall not be responsible for ensuring subsequent delivery of misdelivered items. Delivery at the specified location and time shall be the sole responsibility of the offeror.
No late offer, late modification, or late withdrawal will be considered unless the CPO, and not a designee, determines it would have been timely but for the action or inaction of OAG personnel directly serving the procurement activity (e.g., providing the wrong address). It is the responsibility of the offeror to ensure delivery at the time and to the place specified. Vendors submitting a late response will be notified and given the opportunity to retrieve the submission at their cost. Late submissions not returned to the vendor will be destroyed after all related procurement activity is complete and the resulting contract has been executed.
Records shall be made and, in accordance with OAG policy, kept for each late offer, late modification, or late withdrawal.
Any other submission that has a time or date deadline shall be treated in the same manner as a late offer.

b) Extension of Time

The Procurement Officer may, prior to the date or time for submitting or modifying an offer, extend the date or time for the convenience of the OAG.
After opening offers, the Procurement Officer may request offerors who submitted timely offers to extend the time during which the OAG may accept the offers, provided that, with regard to bids, no other change is permitted. This extension does not provide an opportunity for others to submit offers.
Unless otherwise provided in the solicitation, the vendor's offer must be kept firm for at least 30 calendar days after the opening date.

c) Electronic and Facsimile Submissions

The solicitation may state that electronic and fax machine submissions will be considered if they are received at the designated location by the time and date set for receipt. Any required attachments will be submitted as stated in the solicitation.
Electronic submissions authorized by specific language in the solicitation will be opened in accordance with OAG electronic security measures in effect at the time of opening. Unless the electronic submission procedures provide for a secure receipt, vendor assumes risk of premature disclosure due to submission in unsealed form.
Fax submissions authorized by specific language in the solicitation will be placed in a sealed container upon receipt and opened with other submissions. Vendor assumes risk of premature disclosure due to submission in unsealed form.

d) Intent to Submit

The solicitation may require that vendors submit, by a certain time and date, a notice of their intent to submit an offer in response to the solicitation. Offers submitted without complying with the notice of intent requirement may be rejected.

e) Only One Offer Received

If only one offer is received, and if it meets all material requirements, an award may be made to the single offeror if the Procurement Officer finds that the price submitted is fair and reasonable, and that other prospective offerors had reasonable opportunity to respond, or there is not adequate time for resolicitation. Otherwise, the procurement may be canceled.

f) Alternate or Multiple Offers

Alternate offers may be accepted if:

A) permitted by the solicitation and in accordance with instructions in the solicitation; or

B) only one vendor responded, in which case the alternate submission may be evaluated and treated in accordance with Section 500.340 (Sole Economically Feasible Source Procurement) of this Part; or

C) the low offeror, who has met all requirements of the solicitation, has provided a lower cost alternative that meets all of the material requirements of the solicitation.

Multiple offers may be accepted if permitted by the solicitation and submitted in accordance with instructions in the solicitation.

g) Multiple Items

h) "All or None" Offers

All or none offers may be accepted if the evaluation shows an all or none award to be the lowest cost or best value of those submitted.

i) Conditioning Offers Upon Other Awards

Any offer that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall be rejected.

j) Unsolicited Offers

An award may not be made based on an unsolicited offer in place of the notice and competition requirements of this Part.

k) Clarification of Offers

The Procurement Officer may request that a vendor clarify its offer as a part of the evaluation process. A vendor shall not be allowed to materially change its offer in response to a request for clarification. A clarification is not an opportunity to make material changes or for submission of best and finals as authorized elsewhere in this Part.

l) Assignment, Novation or Change of Name

Assignment. No OAG contract is transferable, or otherwise assignable, without the written consent of the Procurement Officer, provided, however, that a vendor may assign money receivable under a contract after due notice to the OAG. Assignment may require the execution of a contract with the assignee and in such cases the assignee must meet all requirements for contracting with the OAG. Any purported assignment without prior written consent shall be null and void.
Recognition of a Successor in Interest; Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the OAG;

C) the transferor waives all rights under the contract as against the OAG; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the OAG, furnish a satisfactory performance bond.

Change of Name. A vendor may submit a written request to change the name in which it holds a contract with the OAG. The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.

m) Use of Source Selection Method that is Not Required

If a method of source selection is used that it is not, by law, required (e.g., use of a competitive sealed bid for a small purchase), compliance with the rules governing the method of source selection used is required.

n) Vendor Signature

An offer submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the Procurement Officer within the time specified by that officer.

o) Stringing

Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited.

p) Confidential Data

Vendors must clearly identify in writing, by page and paragraph, any information submitted to the OAG claimed to be exempt from the disclosure requirement of the Illinois Freedom of Information Act (FOIA) [5 ILCS 140] and must identify the basis of the claimed exemption and show how that basis applies to the request for exemption. Information submitted without a claim of exemption may be disclosed to the public without notice or permission. Information submitted with a claimed exemption may still be disclosed to the public if determined by the OAG, or other appropriate party, that the claimed exemption does not meet the requirements for withholding the information under FOIA. The OAG will attempt to provide reasonable notice and opportunity to object to the vendor prior to disclosure of any material claimed by the vendor to be exempt from FOIA.

q) Notice of Subcontractor

Any contract entered into under this Part shall state whether the services of a subcontractor will be used. The contract shall include the name and address of each subcontractor having a subcontract with an annual value of more than $50,000, the general type of work to be performed by each subcontractor, and the expected amount of money each will receive under the contract. If, at any time during the term of a contract, a contractor desires to add or change any subcontractor having a subcontract with an annual value of more than $50,000, the contractor shall promptly notify, in writing, the Procurement Officer of the name and address of the proposed subcontractor, the general type of work to be performed by the proposed subcontractor, and the expected amount of money each new or replaced subcontractor will receive under the contract. Upon request of the Procurement Officer, the contractor shall provide the Procurement Officer with a copy of any new or amended subcontract within 15 calendar days after the request is made. A subcontractor, or contractor on behalf of a subcontractor, may identify information that is deemed proprietary or confidential. If the Procurement Officer determines the information is not relevant to the primary contract, the Procurement Officer may excuse the inclusion of the information. If the Procurement Officer determines the information is proprietary or could harm the business interest of the subcontractor, the Procurement Officer may, in his or her discretion, redact the information. Redacted information shall not become part of the public record.

r) Reverse Auction

Use. The CPO, or his or her designee, may procure supplies or services through a competitive electronic auction bidding process if the CPO determines that the use of such a process will be in the best interest of the State.
Process. An invitation for bids shall be issued and shall include a procurement description, all material contractual terms, whenever practical, and conditions applicable to the procurement, including a notice that bids will be received in an electronic auction manner. Bids shall be accepted electronically at the time and in the manner designated in the invitation for bids. During the auction, a bidder's price shall be disclosed to other bidders. Bidders shall have the opportunity to reduce their bid prices during the auction.
Notice. Public notice of the electronic auction bidding process shall be published in the Auditor General Bulletin at least 14 calendar days before the date set for the opening of bids. At the conclusion of the auction, the record of the bid prices received and the name of each bidder shall be open to public inspection.
Award. The contract shall be awarded within 60 calendar days after the auction by written notice to the lowest responsible bidder, or all bids shall be rejected. Extension of the date for award may be made by mutual written consent of the Procurement Officer and the lowest responsible bidder.
Prohibition. This subsection (r) does not apply to procurements of professional and artistic services, telecommunications services, communication services or information services, or contracts for construction projects.

s) Incorporation by Reference

A solicitation may incorporate documents by reference provided that the solicitation specifies where the documents can be obtained.

t) Computation of Days

The time within which any act provided in this Part is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday, and then it shall also be excluded. If the day succeeding a Saturday, Sunday, or holiday is also a holiday, a Saturday, or a Sunday, then that succeeding day shall also be excluded. For the purposes of this Part, "holiday" means: New Year's Day; Dr. Martin Luther King, Jr.'s Birthday; Lincoln's Birthday; President's Day; Memorial Day; Independence Day; Labor Day; Columbus Day; Veterans' Day; Thanksgiving Day; Christmas Day; and any other day from time to time declared by the President of the United States or the Governor of Illinois to be a day during which the agencies of the State of Illinois that are ordinarily open to do business with the public (e.g., the biennial General Election Day) shall be closed for business.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.310 Competitive Sealed Bidding

a) Application

Competitive sealed bidding is the required method of source selection except as allowed by this Part. The provisions of this Section apply to every procurement required to be conducted by competitive sealed bidding.

b) The Invitation for Bids

Use. The Invitation for Bids (IFB) is used to initiate a competitive sealed bid procurement.
Content. The IFB shall include, at a minimum, the following:

A) instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the office to which bids are to be delivered, and the maximum time for bid acceptance;

B) the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description; and

C) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

Incorporation by Reference. The IFB may incorporate documents by reference provided that the IFB specifies where such documents can be obtained.

c) Bidding Time

Bidding time is the period of time between the date of notice or distribution of the IFB and the time and date set for receipt of bids. In each case, bidding time will be set to provide bidders a reasonable time to prepare their bids. A minimum of 14 calendar days shall be provided unless a shorter time is authorized by this Part.

d) Bidder Submissions

Bid Form. The IFB may include a form or format for submitting bids. If a form or format is specified, vendor shall submit bids as instructed.

e) Public Notice

Publication. Every new procurement for supplies and services in excess of the small purchase amount that must be procured using an IFB shall be publicized in the Auditor General Bulletin at least 14 calendar days before the date set for bid opening.
Public Availability. A copy of the IFB shall be made available for public inspection.
Distribution. IFBs or Notices of the Availability of Invitations for Bids may be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition. Notices of Availability shall, at a minimum, indicate where the IFB may be obtained, generally describe what is needed, and indicate the due date for bids. Where appropriate, the Procurement Officer may require payment of a fee or a deposit for supplying the IFB.

f) Pre-Bid Conference

Pre-bid conferences may be conducted to enhance understanding of the procurement requirements. The pre-bid conference shall be announced as part of the IFB or, if the IFB has been issued, to all prospective bidders known to have received an IFB. The conference may be designated as attendance mandatory or attendance optional. The conference should be held long enough after the IFB has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparation of bids. Nothing stated at the pre-bid conference shall change the IFB unless a change is made by written amendment to the IFB.

g) Amendments to Invitations for Bids

Form. Amendments to IFBs shall be clearly identified and shall reference the portion of the IFB being amended.
Distribution. Amendments shall be made available to all prospective bidders known to have received an IFB or, if a conference was held and attendance was mandatory, only to those prospective bidders who attended.
Timeliness. Amendments shall be made available within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, the amendment shall extend the response time. If necessary, the response time may be extended by e-mail, fax or telephone and confirmed in the amendment.

h) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the IFB prior to the time and date set for bid opening.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

i) Receipt, Opening and Recording of Bids

Receipt. Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening. If a bid is opened in error, the file shall so state.
Opening and Recording

A) Bids and modifications shall be opened publicly at the time, date, and place designated in the IFB. Opening shall be witnessed by a State employee or any other person present, but the person opening bids shall not serve as witness. The name of each bidder, the bid price, and such other information as is deemed appropriate by the Procurement Officer shall be recorded and the name of each bidder read aloud or otherwise made available. The name of the witness shall also be recorded at the opening.

B) All bids, except as otherwise provided in subsection (i)(3) of this Section, and the bid record, shall be available for public inspection after award.

Confidential Data. The Procurement Officer shall examine the bids to determine the validity of any written requests for nondisclosure of trade secrets or other proprietary data. If the parties do not agree as to the disclosure of data or other information, the bid shall be rejected as nonresponsive.

j) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the IFB, except as permitted by this Part. The IFB shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder. No bid shall be evaluated for any requirements or criteria that are not disclosed in the IFB.
Responsibility. Responsibility of prospective vendors is covered by Section 500.430 (Responsibility) of this Part.
Responsiveness. A bid must conform in all material respects to the IFB.

i) inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

ii) examination of such elements as appearance, finish, taste, or feel;

iii) other examinations to determine whether it conforms with any other purchase description requirements.

B) The acceptability evaluation is not conducted for the purpose of determining whether one bidder's product or service capability is superior to another, but only to determine that a bidder's offering is acceptable as set forth in the IFB. Any bidder's offering that does not meet the acceptability requirements shall be rejected.

Determination of Lowest Bidder. Following determination of product or service acceptability as set forth in this subsection (j), bids will be evaluated to determine which bidder offers the lowest cost to the OAG in accordance with the evaluation criteria set forth in the IFB. Only objectively measurable criteria that are set forth in the IFB shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost, administrative cost, and ownership or life-cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible such evaluation factors shall be reasonable estimates based upon information the OAG has available concerning future use and shall provide for the equitable treatment of all bids.
Price Negotiation. Negotiations are permitted with the low bidder to obtain a lower price for the item bid.

k) Documentation of Award

Following award, a record showing the successful bidder shall be made a part of the procurement file.

l) Award to Other Than Low Bidder

The Procurement Officer may award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest. A description of the agency's needs, a determination that the anticipated cost will be fair and reasonable, a listing of all responsible and responsive bidders, and the name of the bidder selected, pricing, and the reasons for selecting this bidder instead of the low bidder must be published in the Auditor General Bulletin.
This action may be appropriate when the difference in quality or speed of delivery is so great as compared to the difference in price, and considering the OAG's needs, that a best value award is justified. However, if the difference in price is significant, the Procurement Officer may not utilize this provision.

m) Publicizing Award

The successful bidder shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication. Notice of award shall be issued by either paper or electronic means to all offerors submitting responses to the solicitation and published in the Auditor General Bulletin prior to contract execution.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.315 Multi-Step Sealed Bidding

When it is considered impracticable to initially prepare a definitive purchase description to support an award based on price, an IFB may be issued requesting the submission of unpriced offers to be followed by an IFB limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.

44 Ill. Adm. Code 500.320 Competitive Sealed Proposals

a) The Competitive Sealed Proposal method of source selection shall be used to procure professional and artistic services, except as otherwise provided in subsection (b) of this Section. Other supplies and services may be procured through the Competitive Sealed Proposal method of source selection, on a case-by-case basis, when it is determined by the Procurement Officer that competitive sealed bidding is either not practicable or advantageous.

"Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 500/1-15.60].
"Practicable" Distinguished from "Advantageous". As used in this Section, "practicable" denotes what may be accomplished or put into practical application, and "advantageous" connotes a judgmental assessment of what is in the State's best interest. Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest.

A) Factors to be considered in determining whether competitive sealed bidding is not practicable include:

i) whether the contract needs to be other than a fixed-price type;

ii) whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

iii) whether offerors may need to be afforded the opportunity to revise their proposals, including price;

iv) whether award may need to be based upon a comparative evaluation, as stated in the RFP, of differing price, quality, and contractual factors in order to determine the most advantageous offering to the State. Quality factors include technical and performance capability and the content of the technical proposal; and

v) whether the primary consideration in determining award may not be price.

B) Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

i) if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State; and

ii) whether the factors listed in subsection (a)(2)(A) are desirable, in conducting a procurement, rather than necessary.

b) All new procurements of professional and artistic services shall be made using the procedures contained in this Section, except:

Procurements under Section 500.330 (Small Purchases);
Procurements under Section 500.340 (Sole Source Procurement);
Procurements under Section 500.350 (Emergency Procurements);
Procurements of contract audit services pursuant to subsection (c); and
Procurements subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

c) Contract Audit Rotation

Auditor Retention Policy. Initial audits by a contractor involve audit hours to identify key records and personnel, become familiar with agency operations and the electronic data processing environment, determine what internal controls and procedures are in place, and develop agency specific audit programs. Retaining a contractor for successive audits of the same agency generally allows audits to be conducted more economically, efficiently and effectively, and minimizes audit effort by both the contractor and the agency under audit. Professional auditing standards generally recognize the importance of an auditor retention policy.
Rotation Policy. To maximize the efficiencies obtained by auditor retention, it is the OAG's general policy, subject to the OAG's sole discretion, to maintain the same contractor on an audit engagement for six successive fiscal years, subject to an examination of those factors, including but not limited to performance review, the satisfactory negotiation of terms (including price) and the annual availability of an appropriation.
Emergency Purchases. The term of a contract for audit or examination services procured in compliance with the emergency purchase provisions of Section 500.350 shall not be limited to 90 calendar days but shall be valid until the completion of the audit or examination to which the contract relates.

d) Contents

The RFP shall be in the form specified by the Procurement Officer and shall contain at least the following information:

instructions and information to proposers concerning the proposal submission requirements, including the time and date set for receipt of proposals, and the address of the office to which proposals are to be delivered;
the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description;
a statement of the minimum information that the proposal shall contain, which may, by way of example, include:

A) the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

B) the abilities, qualifications, and experience of key persons who would be assigned to provide the required services;

C) a listing of other contracts under which services similar in scope, size, or discipline to the required services were performed or undertaken within a previous period of time, as specified in the RFP;

D) a plan, giving as much detail as is practical, explaining how the services will be performed; and

price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package).

e) Prequalification

The Procurement Officer shall maintain a list of prequalified professional and artistic vendors in accordance with Section 500.420. Persons may amend statements of qualifications at any time by filing a new statement. Failure of a professional and artistic vendor to prequalify shall not be cause for rejection of a proposal provided that the responsive offeror supplies with its proposal all information defined by the prequalification process.

f) Public Notice

Proposals shall be obtained by issuing an RFP. Notice of Intent to Issue an RFP may be made by the Procurement Officer.
Availability of the RFP shall be published in the Auditor General Bulletin at least 14 calendar days before proposals are due.
The RFP shall also be distributed to prequalified persons expressing interest in performing the services required by the proposed contract.

g) Pre-Proposal Conference

A pre-proposal conference, if appropriate, shall be conducted in accordance with Section 500.310(f) (Pre-Bid Conference). Such a conference may be held anytime prior to the date established for submission of proposals.

h) Receipt and Registration of Proposals

Proposals shall not be opened publicly but shall be opened in the presence of at least one witness. Proposals and modifications shall be time-stamped upon receipt and held in a secure place until the established due date. After the date established for receipt of proposals, a Register of Proposals shall be prepared which shall include for all proposals the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service offered. All proposals, except as otherwise provided in subsection (i), and the Register of Proposals, shall be available for public inspection after award.

i) Confidential Data

The Procurement Officer shall examine the proposals to determine the validity of any written requests from the vendor for nondisclosure of trade secrets or other proprietary data. If the parties do not agree as to the disclosure of data or other information, the proposal shall be rejected as non-responsive.

j) Evaluation of Proposals

The requests for proposals shall state the relative importance of price and other evaluation factors. Proposals shall be submitted in 2 parts: the first, covering items except price, and the second, covering price. The first part of all proposals shall be evaluated and ranked independently of the second part of all proposals. Factors not specified in the RFP shall not be considered. Numerical rating systems may be used but are not required.

k) Discussions

Discussions Permissible.

A) The Procurement Officer may conduct discussions with any offeror to:

i) promote understanding of the OAG's requirements and the offerors' proposals;

ii) determine in greater detail such offeror's qualifications;

iii) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach; and

iv) facilitate arriving at a contract that will be most advantageous to the OAG, taking into consideration price and the other evaluation factors set forth in the RFP.

B) The Procurement Officer may allow changes to the proposal based on those discussions.

No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors, and information contained in any proposals shall not be disclosed until after award of the proposed contract has been made.
Best and Final Offers. The Procurement Officer may request best and final offers from those offerors deemed acceptable after completion of any discussions. Best and final offers shall be submitted by a specified date and time. The Procurement Officer may conduct additional discussions or change the OAG's requirements and require another submission of best and final offers. The scope of the best and final and the number of offerors allowed to participate shall be defined by the Procurement Officer. If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediately previous offer will be construed as its best and final offer.
Nothing in this Section shall prohibit the Procurement Officer from making a selection that represents the best value, qualifications, price and other relevant factors established in the RFP being considered. The Procurement Officer may, in considering best value, determine the proposal from a fully qualified vendor that submitted the lowest price to be the best value without further evaluation.

l) Award

An award shall be made by the Procurement Officer pursuant to a written determination showing the basis on which the award was found to be most advantageous to the OAG, taking into consideration price and the evaluation factors set forth in the request for proposals. The contract file shall contain the basis on which the award is made. If the price of the most qualified vendor is not the lowest price, and if the price exceeds $100,000, the Procurement Officer must state in writing why a vendor other than the low priced vendor was selected and that determination must be published in the Auditor General Bulletin.

m) Publicizing Awards

Notice of award shall be issued by either paper or electronic means to all offerors submitting responses to the solicitation and published in the Auditor General Bulletin prior to contract execution.

n) Pre-solicitation Request for Information

When the Procurement Officer does not have sufficient information about available supplies or services to issue an RFP, the Procurement Officer may issue a Pre-solicitation request for information inviting vendors to submit non-price information about the availability of specified types of supplies or services. Public notice of the Pre-solicitation request for information shall be published in the Auditor General Bulletin at least 14 calendar days before the date set for the receipt of information. The submission of information by a vendor in response to a Pre-solicitation request for information is not a prerequisite for that vendor to respond to a subsequent IFB or RFP for the types of supplies or services for which information was solicited, and the issuance of a Pre-solicitation request for information does not commit the OAG to make any procurement of supplies or services of any kind. Confidential information will not be accepted from a vendor in response to a Pre-solicitation request for information.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.330 Small Purchases

a) Application

Any individual procurement not exceeding $100,000 for supplies or services, not exceeding $100,000 for professional and artistic services, and not exceeding $100,000 for construction, may be made without advance notice, competition or use of any prescribed method of source selection.
Any change identified by the United States Department of Labor in the Consumer Price Index, as certified by CMS or another State agency with appropriate authority. The small purchase maximums shall be likewise recalculated for each July 1 thereafter. Changes to the small purchase maximums can be found on the Illinois Procurement Policy Board website (ppb.illinois.gov) and updated annually.

b) In determining whether a contract is under the limit, the stated value of the supplies or services, plus any optional supplies and services, determined in good faith, shall be utilized. Where the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a twelve month period.

c) If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not to exceed limit applicable to the type of procurement (see subsection (a)).

d) If, after signing the contract, the actual cost of completing the contract is determined to exceed the small purchase amount, and the Procurement Officer determines that a supplemental procurement is not economically feasible or practicable because of the immediacy of the agency's needs or other circumstances, the Procurement Officer must follow the procedures for sole source or emergency procurement, whichever is applicable, to complete the contract.

e) Notice of award shall be published in the Auditor General Bulletin no later than 14 calendar days after the contract is awarded.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.340 Sole Economically Feasible Source Procurement

a) Application

The provisions of this Section apply to procurement from a sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement is within the limit set in Section 500.330 (Small Purchases) or unless emergency conditions exist as defined in Section 500.350 (Emergency Procurements), in which case small purchase or emergency procedures may be used.

b) Conditions for Use of Sole Source Procurement

Sole source procurement is permissible when a requirement is available from only a single supplier or when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one potential offeror authorized to provide that item. The following are examples of circumstances that could necessitate sole source procurement:

compatibility of equipment, accessories, replacement parts, or service is a paramount consideration;
items are needed for trial use or testing of that specific product or service;
the item is to be procured for commercial resale;
non-competitive public utility services;
the item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;
media for advertising;
art, educational (including training for continuing professional education, professional memberships and related expenses) or entertainment services; and
changes to existing contracts (see subsection (c)).

c) Changes

Changes to an existing contract that are germane and reasonable in scope and cost in relation to the original contract or program, that are necessary or desirable to complete the contract or program, and that can be best accomplished by the contract holder may be procured under this Section when the Procurement Officer determines that the cost of delay or disruption to the contract or program, and the cost of a new solicitation, clearly indicate that the existing vendor is the sole economically feasible source.
A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 500.330 of this Part, or that is an emergency as defined in Section 500.350 of this Part, may be made in accordance with procedures governing those Sections and need not comply with these sole source procedures.

d) Procurement Officer to Determine

The Procurement Officer shall determine whether a procurement shall be made as a sole source. The determination and its basis shall be in writing.

e) Sole Source Process

Publication: Before entering into a sole source contract, a Procurement Officer must publish a written description of intent to enter into a sole source contract along with a description of the item to be procured and the intended sole source contractor. The notice shall include the sole source procurement justification, a description of the item to be procured, and the intended sole source contractor. This notice must be posted in the Auditor General Bulletin at least 14 calendar days before a sole source contract is awarded.
Hearing: An interested party may submit a written request for a public hearing. Any hearing shall be conducted in accordance with the procedures set forth in Section 500.1340.

f) Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, to reach contract terms, including price, and shall maintain a record of each sole source procurement showing:

the vendor's name;
the amount and type of the contract;
what was procured; and
the identification number of the contract file.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.350 Emergency Procurements

a) Application

The provisions of this Section apply to every procurement over the small purchase limit set in Section 500.330 (Small Purchases) of this Part and that is not a sole source procurement under Section 500.340 made under emergency, including quick purchase, conditions.

b) Definition of Emergency Conditions

Procurements may be made under this Section 500.350 in the following circumstances:

Traditional circumstances include but are not limited to:

A) public health or safety, including the health or safety of any particular person, is threatened;

B) immediate repairs are needed to OAG property to protect against further loss or damage to OAG property, or to prevent loss or damage to OAG property;

C) immediate action is needed to prevent or minimize serious disruption in critical OAG services that affect health, safety or collection of substantial State revenues;

D) action is needed to ensure the integrity of State records;

E) equipment or services are necessary in the furtherance of covert activities (including the conduct of audits and investigations) lawfully conducted by the OAG. Any required disclosures may be postponed or shall be made so as not to jeopardize those covert activities;

F) immediate action is necessary to avoid lapsing or loss of federal or donated funds; or

G) the need for items to protect or further State interests is immediate and use of other competitive source selection procedures under this Part cannot be accomplished without significant risk of causing serious disadvantage to the State.

After Unsuccessful Competitive Sealed Bidding or Request for Proposals. When bids or proposals received pursuant to a competitive sealed bid or competitive sealed proposal method are unreasonable or non-competitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals, and if emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding or competitive sealed proposals, an emergency procurement may be made.
Extension to Allow Competition. Extending an existing contract for such period of time as is needed to conduct a competitive method of source selection when terminating or allowing the contract to terminate would not be advantageous to the OAG.
Quick Purchase

A) A supplier announces bankruptcy, cessation of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is more advantageous to the OAG than instituting a competitive procurement under the provisions of this Part for the supplies or services;

B) Items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a purchase immediately to take advantage of the availability and price;

C) availability of rare items, such as books of historical value;

D) the procurement is for entertainment.

c) Scope and Duration of Emergency Conditions

Emergency procurements shall be limited to those supplies, services or construction items necessary to meet the emergency. Except as otherwise provided in Section 500.320(c)(3), the term of the emergency purchase shall be limited to the time reasonably needed for a competitive procurement, not to exceed 90 calendar days. A contract may be extended beyond 90 calendar days if the Procurement Officer determines additional time is necessary and the contract scope and duration are limited to the emergency. Prior to execution of the extension, the Procurement Officer must hold a public hearing and provide written justification for all emergency contracts. Members of the public may present testimony.

d) Source Selection Methods

Any method of source selection, whether or not identified in this Part, may be used to conduct the procurement in emergency situations. The procedure used shall be selected to assure that the required items are procured in time to meet the emergency. Such competition as is practicable shall be obtained.

e) Determination and Record of Emergency Procurement

Determination. The Procurement Officer shall make a written determination stating the basis for an emergency procurement and for the selection of the particular contractor. These determinations shall be kept in the contract file.
Record. A statement of each emergency procurement shall be filed with the Auditor General within 10 calendar days after the procurement and shall include the following information:

A) the vendor's name;

B) the amount and type of the contract, provided that if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known;

C) a description of what the vendor will do or provide; and

D) the reasons for using the emergency method of source selection.

Notice of the Emergency Procurement. Notice of the emergency procurement shall be published in the Auditor General Bulletin no later than 5 calendar days after the contract is awarded and shall include a description of the procurement, the reasons for the emergency procurement and the total cost. When only an estimate of the total cost is known at the time of publication, the estimate shall be identified as an estimate and published. When the actual total cost is determined, it shall also be published in like manner before the 10th day of the next succeeding month.
Notice of Extension. Notice of intent to extend an emergency contract shall be published in the Auditor General Bulletin no later than 14 calendar days prior to a public hearing. Notice shall include at least a description of the need for the emergency purchase, the contractor and, if applicable, the date, time and location of the public hearing. Any hearing shall be conducted in accordance with the procedures set forth in Section 500.1340.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.360 Other Methods of Source Selection

Other methods of source selection, as defined by an agency with statutory procurement authority in its adopted rules may be used by the OAG when, in the CPO's best judgment, such methods of source selection are in the State's best interests.

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.370 Tie Bids and Proposals

a) Tie bids or proposals are those from responsive and responsible vendors that are, in the case of bids, identical in price, and, in the case of proposals, identical in rank after evaluation.

b) Tie bids or proposals will be treated as follows:

If the tied vendors include only one Illinois resident vendor, the Illinois resident vendor shall be given the award. "Illinois resident vendor" has the meaning ascribed in Section 500.1110 (Resident Vendor Preference) of this Part.
In all other situations, the award shall be made by lot unless the Procurement Officer determines that:

A) awarding to one of the vendors is in the State's best interest because, for example, that vendor is likely to be more reliable or responsive to the State's needs, based on past performance; provides a better quality of the supply or service; or provides quicker delivery; or, in the case of proposals, because of a desire to take advantage of the lower price; or

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.380 Modification, Correction or Withdrawal of Offers

a) Modification, Correction or Withdrawal Before Opening

An offeror may withdraw or modify an offer if notice of the withdrawal, correction or modification is received by the OAG before the latest time specified for receipt of offers. Any modification, correction or withdrawal, however, must be made in writing and received by the OAG prior to the scheduled due date and time. When time is of the essence, the OAG may agree to receive modifications, corrections or withdrawals by electronic mail, fax or telephone. An originally signed confirmation of a telephone modification, correction or withdrawal shall be mailed or delivered by the offeror on the same day.

b) Mistakes Discovered After Opening but Before Award

Waiver of Minor Informalities. A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery, or contractual conditions is negligible). The Procurement Officer shall waive these informalities or allow the offeror to correct them, depending on which is in the best interest of the State.
Correction of Mistakes in Which Intended Correct Information is Evident. If the mistake and the intended correct information are clearly evident on the face of the bid or proposal document, the information shall be corrected and the bid or proposal may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid or proposal document are typographical errors, errors in extending unit prices, transpositional errors, and arithmetical errors.
Withdrawal When Intended Correct Information is Not Evident. The low price bid or proposal may be withdrawn if:

A) a material mistake is clearly evident on the face of the bid or proposal document but the intended correct bid or proposal is not similarly evident; or

B) there is proof of evidentiary value that clearly and convincingly demonstrates that a material mistake was made.

c) Correction During Best and Final Offers

If best and final offers are requested, any offeror may freely correct any mistake prior to the date set for receipt of best and final offers, provided the correction would not be contrary to the fair and equal treatment of other offerors.

d) Mistakes Discovered After Award

Mistakes shall not be corrected after award of the contract except where the Procurement Officer finds it would be unconscionable (e.g., if the mistake resulted in a windfall to the State) not to allow the mistake to be corrected.

e) Documentation Required

When an offer is modified, corrected or withdrawn, or modification, correction or withdrawal is denied, a written determination shall be prepared by the Procurement Officer showing that relief was granted or denied in accordance with this Part.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.390 Cancellation of Solicitations; Rejection of Offers

a) Policy

Any solicitation may be canceled before or after opening when the Procurement Officer believes cancellation to be in the OAG's best interest. Nothing shall compel the award of a contract.

b) Cancellation of Solicitation; Rejection of All Offers

A solicitation may be canceled in whole or in part when the Procurement Officer determines in writing that such action is in the OAG's best interest for reasons including, but not limited to:

the OAG no longer requires the supplies, services or construction;
the OAG no longer can reasonably expect to fund the procurement;
proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable;
ambiguous or otherwise inadequate specifications;
the solicitation did not provide for consideration of all factors of significance to the OAG;
prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;
all otherwise acceptable offers received are at clearly unreasonable prices; or
there is reason to question whether the offers may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

c) Notice of Cancellation

When a solicitation is canceled, notice of cancellation, including a brief explanation of the reason for cancellation, shall be posted to the Auditor General Bulletin.

d) Rejection of Individual Offers

Individual offers may be rejected for reasons including, but not limited to:

A) the vendor that submitted the offer is nonresponsible as determined under Section 500.430 (Responsibility);

B) the offer is not responsive, that is, it does not conform in all material respects to the solicitation;

C) the supply, service or construction item offered is unacceptable by reason of its failure to meet the requirements of the solicitation, including, but not limited to, specifications or permissible alternates or other acceptability criteria set forth in the solicitation; or

D) the proposed price, which may include options, is clearly unreasonable.

Notice of Rejection. Upon request, offerors whose offers have been rejected shall be advised of the reasons for rejection.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.395 Public Procurement File

A procurement file shall be maintained for all contracts, regardless of the method of procurement. The procurement file shall contain the basis on which the award is made, all submitted bids and proposals, all evaluation materials, score sheets and all other documentation related to or prepared in conjunction with evaluation, negotiation and the award process. The procurement file shall contain a written determination, signed by the Procurement Officer or designee, setting forth the reasoning for the contract award decision. The procurement file shall not include trade secrets or other competitively sensitive, confidential or proprietary information. The procurement file shall be open to public inspection within 7 calendar days following award of the contract.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.400 Suppliers

The OAG may contract with any qualified source of supply, including the following special sources, from which procurements may be made without notice and competition:

a) Correctional Industries;

b) State and Federal Surplus Warehouses under the jurisdiction of CMS. The State Property Control Act [30 ILCS 605/7a] requires that surplus furniture be considered before any purchase of new furniture valued at $1,500 or more per piece;

c) Qualified workshops for persons with significant disabilities;

d) State agencies and other governmental units.

History

Source: Amended at 49 Ill. Reg. 164, effective January 1, 2025

44 Ill. Adm. Code 500.410 Vendor List/Required Use

The CPO may maintain a list of vendors who have expressed interest in contracting with the OAG. This list may be used to solicit for small purchases, sole sources and emergency procurements, as well as to supplement Bulletin notices.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.420 Prequalification

a) General

The CPO shall identify by publication in the Auditor General Bulletin the categories of supplies and services (including professional and artistic services) for which the OAG may prequalify vendors of those supplies and services. The OAG is not required to prequalify vendors but may do so when determination of a vendor's qualifications prior to procurement would be advantageous to the OAG.
An opportunity to prequalify shall be allowed at least one time each fiscal year. The opportunity to prequalify shall be announced in the Auditor General Bulletin.
When prequalifying a vendor, the Procurement Officer may limit prequalifications to determining whether a vendor has been and is likely to be "responsible" using the criteria set forth in Section 500.430 of this Part. The fact that a prospective vendor has been prequalified does not necessarily represent a finding of responsibility for a particular procurement.
When prequalifying a vendor, the Procurement Officer may consider factors tailored to a specific procurement or type of procurement, which shall be announced in the Auditor General Bulletin.
Except as provided in Section 500.320(e), prequalification shall not be used to bar or prevent any qualified business or person from bidding or responding to invitations for bid or requests for proposal.

b) Professional and Artistic Services

Any prequalification of vendors of professional and artistic services:

shall include, at a minimum, a specified level of:

A) education;

B) training;

C) experience; and

D) technical ability; and

may require certification or licensure, or membership in professional associations.

c) Qualified Products List

Qualified products lists are treated in Section 500.600 (Specifications) of this Part.

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.430 Responsibility

a) Application

Contracts are to be made only with responsible vendors unless no responsible vendor is available to meet the OAG's needs. If there is doubt about responsibility, and if a bond or other security would adequately protect the State's interests, then that vendor may be awarded a contract upon receipt of the bond or other security.

b) Standards of Responsibility

Standards. Factors to be considered in determining whether the standard of responsibility has been met may include, but are not limited to, whether a prospective vendor:

A) has available the appropriate financial, material, equipment, facility, and personnel resources and expertise (or the ability to obtain them) necessary to indicate its capability to meet all contractual requirements (the Procurement Officer may designate a level below which the vendor will be deemed "not responsible");

B) is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments;

C) has a satisfactory record of performance. Vendors who are or have been deficient in current or recent contract performance in dealing with the State or other customers may be deemed "not responsible" unless the deficiency is shown to have been beyond the reasonable control of the vendor;

D) has a satisfactory record of integrity and business ethics. Vendors who are under investigation or indictment for criminal or civil actions that bear on the particular procurement or that create a reasonable inference or appearance of a lack of integrity on the part of the vendor may be declared not responsible for the particular procurement;

E) is a legal entity prior to submitting the bid, offer or proposal and is authorized to transact business or conduct affairs in Illinois prior to execution of the contract;

F) has supplied all necessary information in connection with the inquiry concerning responsibility;

G) has a current Public Contracts number from the Illinois Department of Human Rights, pursuant to 44 Ill. Adm. Code 750.210, if required. Proof of application prior to opening of bids or proposals will be sufficient for an initial determination;

H) pays prevailing wages, if required by law; and

I) is current in payment of all State of Illinois taxes, including the unemployment insurance tax.

Information Pertaining to Responsibility. The prospective vendor shall supply information requested by the Procurement Officer concerning the responsibility of the vendor. The OAG may supplement this information from other sources and may require additional documentation at any time. If the vendor fails to supply the requested information, the Procurement Officer shall base the determination of responsibility upon any available information, or may find the prospective vendor nonresponsible.

c) Written Determination of Nonresponsibility Required

If a vendor who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the Procurement Officer. The final determination shall be made part of the procurement file.

d) Bond for Responsibility

Vendors not having a history of performance may be considered responsible if no other disqualifying factors exist. A bond or other security may be required of these vendors.

e) Affiliated Companies

Vendors who are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing vendor that has been determined not responsible will also be determined not to be responsible unless the new organization can prove it was not set up for the purpose of avoiding an earlier determination of nonresponsibility.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.500 Security Requirements

a) A Procurement Officer may require that a vendor furnish bid, proposal or performance security on OAG contracts. Whenever security is required, except as provided herein, the procurement document will clearly indicate the type and amount of security.

c) Unless the amount is set by law, the CPO will determine the amount, in dollars or percentage of contract price, that will adequately protect the State's interests.

e) Permissive/Mandatory Security

Bid or proposal security is permissive on any contract but is not appropriate on emergency or sole source procurements.
Performance security is permissive on any contract and is recommended on contracts calling for advance payment.
Performance security is required on all public works contracts.

f) A vendor may submit a single or continuous security each year that will be applicable on all contracts of the OAG. When such security has been obligated in an amount equal to the sum of accumulated security requirements, additional security must be submitted.

g) Bid or proposal security will be returned to unsuccessful vendors as soon after award as possible. The bid or proposal security of the successful vendor will be returned after contracts have been signed and performance security, if any, submitted. Performance security will be returned upon full performance.

44 Ill. Adm. Code 500.600 Specifications

a) Responsibilities Regarding Specifications

The Procurement Officer is authorized to write specifications for procurements for the OAG.

b) Procedures for the Development of Specifications

All procurements shall be based on specifications that accurately reflect the OAG's needs. Specifications shall clearly and precisely describe the salient technical or performance requirements.
Specifications shall not include restrictions that do not significantly affect the technical requirements or performance requirements, or other legitimate OAG needs. All specifications shall be written in such a manner as to describe the requirements to be met, without having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.
Any specifications or standards adopted by business, industry, not-for-profit organization or governmental unit may be adopted by reference.
A specification may provide alternate descriptions where two or more design, functional, or performance criteria will satisfactorily meet the OAG's requirements.
A solicitation or specification for a contract, or a contract, may not require, stipulate, suggest or encourage a monetary or other financial contribution or donation, cash bonus or incentive, or economic investment as an explicit or implied term or condition of awarding or completing the contract. [30 ILCS 500/20-50]

c) Brand Name or Equal Specification

Brand name or equal specifications may be used when the Procurement Officer determines in writing that:

A) no specification for a common or general use specification or qualified products list is available;

B) time does not permit the preparation of another form of specification, not including a brand name specification;

C) the nature of the product or the nature of the OAG's requirement makes use of a brand name or equal specification suitable for the procurement; or

D) use of a brand name or equal specification is in the OAG's best interest.

Brand name or equal specifications shall seek to designate more than one brand as "or equal," and shall further state that substantially equivalent products to those designated will be considered for award.
Unless the Procurement Officer determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics that are required.
When a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use. Burden of proof that the product is equal is on the vendor.

d) Brand Name Only Specification

Determination. A brand name only specification may be used only when the Procurement Officer makes a written determination that only the identified brand name item or items will satisfy the OAG's needs.
Use. Brand name alone may be specified in order to fill medical prescription needs, to stock State retail-type operations, to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the Procurement Officer. The OAG may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time, and for that period the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected.
Competition. The Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made under Section 500.340 (Sole Economically Feasible Source Procurement).
Small and Emergency Procurements. Brand name only specifications may be used when procuring items under the small (Section 500.330) and emergency (Section 500.350 of this Part) provisions.

e) Qualified Products List

Use. A qualified products list may be developed by the Procurement Officer when testing or examination of the supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy OAG requirements.
Solicitation. When developing a qualified products list, a notice shall be posted to the Auditor General Bulletin soliciting potential suppliers to submit products for testing and examination to determine acceptability for inclusion in a qualified products list.
Testing and Confidential Data. Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements. Except as otherwise provided by law, trade secrets, test data, and similar information provided by the supplier will be kept confidential when requested in writing by the supplier.

f) Proven Products

g) Product Demonstration

Any vendor may request time and space to demonstrate a product or service. Agreement to allow these demonstration will be solely at the OAG's discretion and will not entitle the vendor to a contract nor shall payment for the demonstration be allowed unless a written contract had been executed prior to the demonstration.

h) Prohibition on Incentives

A solicitation or specification for a contract, or a contract, may not require, stipulate, suggest or encourage a monetary or other financial contribution or donation, cash bonus or incentive, or economic investment as an explicit or implied term or condition for awarding or completing the contract.

i) Prohibited Bidders and Contractors

No person or business shall bid, offer, or enter into a contract with the OAG if the person or business assisted an employee of the OAG, who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award an OAG contract, by reviewing, drafting, directing or preparing any invitation for bids, a request for proposal, or request for information or provided similar assistance except as part of a publicly issued opportunity to review drafts of all or part of these documents.
This subsection (i) does not prohibit a person or business from submitting a bid or offer or entering into a contract if the person or business:

A) initiates a communication with an employee to provide general information about products, services, or industry best practices;

B) responds to a communication initiated by an employee of the OAG for the purposes of providing information to evaluate new products, trends, services or technologies;

C) asks for clarification regarding a solicitation, so long as there is no competitive advantage to the person or business and the question and answer, if material, are posted to the Auditor General Bulletin as an addendum to the solicitation [30 ILCS 500/50-10.5(e)];

D) receives or possesses written material obtained from a State employee from public sources, such as through an internet search, or literature packets obtained in conjunction with an event such as a trade show; or

E) provides, at the request of the OAG, general marketing material or makes a general sales presentation to show the person's qualifications or product capabilities. Material may be personalized for the OAG provided any personalization is obtained from publicly available sources.

Nothing in this Section prohibits a vendor developing technology, goods, or services from bidding or offering to supply that technology or those goods or services if the subject demonstrated to the State represents industry trends and innovation and is not specifically designed to meet the State's needs.
No person or business shall submit specifications to a State agency unless requested to do so by an employee of the State. No person or business who contracts with a State agency to write specifications for a particular procurement need shall submit a bid or proposal or receive a contract for that procurement need.
For purposes of this subsection (i), "business" includes all individuals with whom a business is affiliated, including, but not limited to, any officer, agent, employee, consultant, independent contractor, director, partner, or manager of a business. [30 ILCS 500/50-10.5(e)]

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.700 Types of Contracts

a) Subject to the limitations of this Section and unless otherwise authorized by law, any type of contract that will promote the best interests of the State may be used.

b) Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

The cost-plus-a-percentage-of-cost contract is prohibited. This type of contracting may not be used alone or in conjunction with an authorized type of contract. A cost-plus-percentage-of-cost contract is one in which the vendor selects the supply or service on which the vendor's percentage is applied.

A percentage mark-up from an agreed price list is not a cost-plus-a-percentage-of-cost contract.
A percentage mark-up from the cost of a supply or service selected by the State or another vendor under contract to the State is not a cost‑plus-a-percentage-of-cost contract.
A percentage mark-up from the cost of parts needed in relation to a contract for services does not convert the services contract to a prohibited cost-plus-a-percentage-of-cost contract, provided the parts supplied under the cost-plus-a-percentage-of-cost method do not exceed 20% of the value of the contract.

c) A cost-reimbursement contract may be used only when a determination is made in writing that a cost-reimbursement contract is likely to be less costly to the State than any other type or that it is impracticable to obtain the item required except under that type of contract.

d) Option Provisions

When a contract is to contain an option for renewal, extension or purchase, notice of such provision shall be included in the solicitation. These options may be exercised without taking other procurement action when the option is established for exercise at the OAG's option or by mutual agreement.

e) State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available from the State's own programs, such as Correctional Industries, may be ordered without violating any contract.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.800 Duration of Contracts

a) General

A multi-term contract for a term up to 10 years, inclusive of proposed contract renewals, is authorized when determined by the Procurement Officer to be in the best interest of the State.
A software license designated as a perpetual license is not considered a multi-term contract; it is instead a one-time purchase.

b) Subject to Appropriation

Each contract is contingent upon and subject to the availability of funds. The State, at its sole option, may terminate or suspend a contract, in whole or in part, without penalty or further payment being required if the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay that obligation or if funds needed are insufficient for any reason. Each contract payable in whole or in part by any funds appropriated by the Illinois General Assembly shall recite that the contract is subject to termination and cancellation for lack of, or insufficiency in, funding. A vendor will be notified in writing by the OAG of a failure to receive or a reduction or decrease in any appropriation or insufficiency of funds affecting the contract. This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

c) Conditions for Use of Multi-Year Contracts

A multi-year contract may be used when:

special production of definite quantities or the furnishing of long-term services is required to meet OAG needs; or
a multi-year contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in OAG procurement. The following factors are among those relevant to such a determination:

B) lower production costs because of larger quantity of service requirements, and substantial continuity of production or performance over a longer period of time, can be expected to result in lower unit prices;

C) stabilization of the contractor's work force over a longer period of time may promote economy and consistent quality; or

D) the cost and burden of contract solicitation, award, and administration of the procurement may be reduced.

d) Multi-Year Contract Procedure

The solicitation shall state:

the proposed term;
the amount of supplies or services required for the proposed contract period;
the type of pricing requested (e.g., firm for term); and
how award will be determined.

e) Renewals

Renewals may be exercised without further procurement activity, provided the initial term and the exercised renewals may not exceed 10 years, the terms and conditions do not change except as provided in the contract and the option is reserved solely to the OAG or is by mutual agreement.
Where a renewal will result in the total term, counting the initial term and any previous renewals, to exceed 10 years, the renewal must be procured using one of the methods of source selection authorized by this Part. This renewal will start a new term that shall not exceed 10 years.
Notice of renewal shall be published in the Auditor General Bulletin no later than 14 calendar days after the contract is awarded.

f) Cancellation of Contracts

In any of the following cases, the OAG shall have the right to terminate or rescind any contract entered into under this Part without penalty:

A) The successful vendor fails to furnish a satisfactory performance bond within the time specified;

B) The vendor fails to make delivery at the place or within the time specified in the contract or as ordered by the OAG;

C) Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies or services promptly;

D) The vendor is guilty of misrepresentation (e.g., misbranding of food or drugs) in connection with another contract for the sale of supplies or services to the State such that the vendor cannot reasonably be depended upon to fulfill obligations as a responsible vendor under other contracts with the State;

E) The vendor is adjudged bankrupt; enters into receivership or makes a general assignment for the benefit of creditors due to insolvency; disregards laws, rules or instructions of the OAG; or acts in violation of any provision of the contract;

F) Any other breach of contract or other unlawful act by the vendor;

G) The contract was obtained by fraud, collusion, conspiracy or other unlawful means; or

H) The contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.

Damages

The damages for which the OAG may be compensated as provided in this Section or by a suit on the vendor's performance bond or by other legal remedy shall include, but are not limited to, the following:

A) the additional cost of supplies or services bought elsewhere;

B) cost of repeating the procurement procedure;

C) any expenses incurred because of delay in receipt of supplies or services; and

D) any other damages caused by the vendor's breach of contract or unlawful act.

Withholding Money to Compensate OAG for Damages

If a contract is terminated or rescinded under this subsection (f), the OAG may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the OAG for any damage resulting from termination or rescission.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.900 Prevailing Wage

a) In order to be considered responsible under Section 500.430, vendors of the following classifications of services must certify to the OAG that their employees are paid wages and benefits and are working under conditions prevalent in the location where the work is to be performed:

Printing;
Janitorial cleaning services, window cleaning services, building and grounds services, site technician services, natural resources services, food services, and security services of $2,000 or more or $200 or more per month; and
Public works.

b) For purposes of this Section, "locality" or "location" shall have the meaning established in rules promulgated by CMS or other statutory procurement agency.

c) Prevailing wages, benefits and conditions will be determined by the Illinois Department of Labor.

d) This Section does not apply to services furnished under contracts for professional or artistic services or to vocational programs of training for persons with physical or mental disabilities or to qualified not-for-profit agencies for persons with severe disabilities.

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.910 Filing with Comptroller

a) Filing with Comptroller

Whenever a contract liability, except for contracts paid from personal services or contracts between the State and its employees to defer compensation in accordance with Article 24 of the Illinois Pension Code [40 ILCS 5], exceeding $20,000 is incurred by the OAG, a copy of the contract, purchase order, or lease shall be filed with the Comptroller within 30 calendar days thereafter.

b) Late Filing Affidavit

When a contract, purchase order, or lease required to be filed by this Section has not been filed within 30 calendar days after execution, the OAG must file with the Comptroller an affidavit, signed by the Auditor General or his or her designee, setting forth an explanation of why the contract liability was not filed within 30 calendar days after execution. A copy of this affidavit shall be filed with the Auditor General.

c) Timely Execution of Contracts

No voucher shall be submitted to the Comptroller for a warrant to be drawn for the payment of money from the State treasury or from other funds held by the State Treasurer on account of any contract unless the contract is reduced to writing before the services are performed and filed, if so required under subsection (a), with the Comptroller. Contractors shall not be paid for any supplies that were received or services that were rendered before the contract was reduced to writing and signed by all necessary parties. A Procurement Officer may request an exception to this requirement by submitting a written statement to the Comptroller and Treasurer setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services were performed. A waiver of this requirement must be approved by the Comptroller and Treasurer. The requirements of this subsection shall not apply to emergency purchases if notice of the emergency purchase is published in the Auditor General Bulletin as required by Section 500.350.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.920 Equal Employment Opportunity; Affirmative Action

a) Public Contracts

Every party to a public contract and every eligible bidder shall:

Refrain from unlawful discrimination and discrimination based on citizenship status in employment and undertake affirmative action to assure equality of employment opportunity and eliminate the effects of past discrimination;
Comply with applicable procedures and requirements of the Department of Human Right's (DHR) regulations concerning equal employment opportunities and affirmative action;
Provide such information, with respect to its employees and applicants for employment, and assistance as DHR may reasonably request;
Have written sexual harassment policies that shall include, at a minimum, the following information:

A) the illegality of sexual harassment;

B) the definition of sexual harassment under State law;

C) a description of sexual harassment, utilizing examples;

D) the vendor's internal complaint process, including penalties;

E) the legal recourse, investigative and complaint process available through DHR and the Human Rights Commission;

F) directions on how to contact DHR and the Commission; and

G) protection against retaliation as provided by Section 6-101 of the Illinois Human Rights Act (IHRA) [775 ILCS 5]. A copy of the policies shall be provided to DHR upon request.

b) Section 7-105A of the IHRA authorizes DHR to promulgate policies, rules and regulations to implement the provisions of the IHRA applicable to eligible bidders and public contractors. DHR has promulgated rules, 44 Ill. Adm. Code 750, that establish public contractor and eligible bidder duties, obligations, and reporting requirements. These rules require that certain employers register with DHR in order to be eligible for the award of certain public contracts (44 Ill. Adm. Code 750.Appendix A).

44 Ill. Adm. Code 500.1000 Applicability

Except as otherwise authorized or required by law, all leases for real property or capital improvements, including office and storage space, buildings and other facilities for State agencies where the State is the lessee are subject to, and shall be procured by, the OAG in accordance with this Part.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1010 Method of Source Selection

Leases shall be procured by a Request for Information (RFI) process except that the process need not be used in any of the following circumstances:

a) Property of less than 10,000 square feet with base rent of less than $200,000 per year.

b) Duration of less than one year that cannot be renewed.

c) Specialized space available at only one location.

d) Renewal or extension of leases after the effective date of this Part, provided that:

the CPO determines in writing that renewal or extension is in the best interest of the State;
the CPO publishes notice of the renewal or extension in the Auditor General Bulletin; and
the length of the lease, including renewals, does not exceed 10 years.

e) Leases with governmental units when deemed by the CPO to be in the best interest of the State.

History

Source: Amended at 49 Ill. Reg. 164, effective January 1, 2025

44 Ill. Adm. Code 500.1015 Historic Area Preference

History

Source: Added at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1020 Request for Information

a) RFI Form

When required, an RFI shall be issued and shall include:

the type of property to be leased;
the proposed uses of the property;
the duration of the lease;
the preferred location of the property; and
a general description of the configuration desired.

b) Public Notice

Public notice of the RFI for the availability of real property to lease shall be published in the Auditor General Bulletin at least 14 calendar days before the date set forth in the request for receipt of responses and shall also be published in similar manner in a newspaper of general circulation in the community or communities where the OAG is seeking space. Notice may also be mailed to owners of property that may meet the OAG's needs after public notice has been published in the Auditor General Bulletin.

c) Response

The RFI response shall consist of written information sufficient to show that the respondent can meet minimum criteria set forth in the RFI. All responses will be publicly opened on the announced date. Names of all parties submitting responses will be made available to the public immediately following the opening of responses. No other information concerning responses shall be publicly disclosed until award or other conclusion of the RFI process.

d) Negotiation and Determination

The Procurement Officer may enter into discussions with respondents of the RFI for the purpose of clarifying OAG needs and the information supplied by the respondents. On the basis of the information supplied and discussions, if any, the Procurement Officer shall make a written determination identifying the responses that meet the minimum criteria set forth in the RFI. Negotiations shall be entered into with all qualified respondents for the purpose of securing a lease that is in the best interest of the State. Site visits may be made as part of the discussion and/or negotiation process.
The Procurement Officer reserves the right to reject any responses and evaluate best and final offers. Best and final offers shall be sought after a written determination is made by the Procurement Officer that it is in the best interest of the State to request best and final offers. A best and final offer shall not be requested from any vendor deemed non-responsive or who does not meet the minimum criteria set forth in the RFI.

e) Contract Award, Reporting and Filing

The Procurement Officer or designee shall review all relevant information and recommend which response will be accepted based on an evaluation of all responsive offers. The final award decision will be published in the Auditor General Bulletin. Notification of award will be sent to all respondents.
When the lowest response by price is not selected, a written report of the negotiation shall be retained in the lease files and shall include the reasons for the final selection. The written reasons for the selection shall be published in the Auditor General Bulletin.

f) Emergency lease procurements may be made pursuant to Section 500.350.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1030 Lease Requirements

a) Length of Leases

Maximum Term. Except where a longer term is authorized by law, leases shall be for a term not to exceed 10 years inclusive of proposed contract renewals and shall include a termination option in favor of the OAG after no more than 5 years.
Renewal Option. Leases may include a renewal option. An option to renew may be exercised only when the Procurement Officer determines in writing that renewal is in the best interest of the OAG and notice of the exercise of the option is published in the Auditor General Bulletin at least 60 calendar days prior to the exercise of the option.
Holdover. No lease may continue on a month-to-month or other holdover basis for a total of more than 6 months.

b) Sufficiency of Funds

All leases shall recite that they are subject to termination and cancellation as provided in Section 500.800(b).

c) Lessor's Failure to Make Improvements

d) All leases shall be accompanied by a full written disclosure of the identity of every owner or beneficiary having an interest in the premises being leased.

The disclosure shall be subscribed and sworn or otherwise affirmed on oath by an owner, authorized trustee, corporate official, partner, managing agent or other authorized person.
The disclosure shall set forth all ownership interests. By way of example, the disclosure should identify the names of the beneficiaries of a land trust in addition to the trustee, the names of all partners whether general or limited in nature, the names of all members or managers of a limited liability company and the names of all shareholders in a corporation who are entitled to receive more than 7½% of the total distributable income of the entity. If the entity is publicly traded and no readily known individual owns more than a 7½% interest, then the requirement of this subsection (d)(2) may be met by an officer or managing agent of the entity making an affirmative statement to this effect under oath.
The disclosure shall set forth the identity of any State officer, employee or elected official, or the wife, husband or minor child of that person, having an ownership or beneficial interest under the lease. In the event a person is so set forth, the disclosure shall include a specific designation of the percentage of total distributable income that the person, together with that of the wife, husband or minor child of that person, is entitled to receive from any firm, partnership, association or corporation that is the lessor.
It shall be the responsibility of the lessor to notify the Procurement Officer of any changes in ownership or beneficial interest and to submit updated disclosure statements reflecting the changes within 30 days after the change.

e) Space that is not in compliance with accessibility regulations, or is not capable of being brought into compliance with the installation of minimum essential features of accessibility by the time of occupancy, shall not be considered for use. Each RFI will contain specifications for accessibility.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1040 Purchase Option

Initial leases of all space in entire, free-standing buildings shall include an option to purchase exercisable by the OAG, unless the CPO determines that inclusion of a purchase option is not in the OAG's best interest and makes that determination in writing along with the reasons for making that determination. The determination shall be published in the Auditor General Bulletin. Leases from governmental units and not-for-profit entities are exempt from the requirements of this Section.

44 Ill. Adm. Code 500.1050 Rent Without Occupancy

Except when deemed by the CPO to be in the best interest of the State, the OAG may not incur rental obligations before having occupancy or possession of the space rented.

44 Ill. Adm. Code 500.1060 Local Site Preferences

44 Ill. Adm. Code 500.1110 Resident Vendor Preference

a) When a contract is to be awarded to the lowest responsible bidder or offeror, a resident bidder or offeror shall be allowed a preference as against a non-resident bidder or offeror from any state that gives or requires a preference to bidders or offerors from that state. The preference shall be equal to the preference given or required by the state of the non-resident bidder or offeror. Further, if only non-resident bidders or offerors are bidding, the purchasing agency is within its right to specify that Illinois labor and manufacturing locations be used as a part of the manufacturing process, if applicable. This specification may be negotiated as part of the solicitation process. [30 ILCS 500/45-10(a)]

b) "Illinois resident bidder or offeror" as used in this Section means a person authorized to transact business in this State and having a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when any bid for a public contract is first advertised or announced. A resident bidder or offeror includes a foreign corporation duly authorized to transact business in this State that has a bona fide establishment for transacting business within this State where it was actually transacting business on the date when any bid for a public contract is first advertised or announced.

c) This Section does not apply to any contract for any project as to which federal funds are available for expenditure when its provisions may be in conflict with federal law or federal regulation.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1120 Soybean Oil-Based Ink and Vegetable Oil-Based Ink

Contracts requiring the procurement of offset printing services shall specify the use of soybean oil-based ink or vegetable oil-based ink unless the Procurement Officer determines that another type of ink is required to assure high quality and reasonable pricing of the printed product. This Section does not apply to digital printing services.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.1130 Recycled Supplies

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.1140 Recyclable Supplies

All supplies purchased for use by State agencies must be recyclable paper unless a recyclable substitute cannot be used to meet the requirements of the State agencies or would constitute an undue economic or practical hardship. [30 ILCS 500/45-25]

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1145 Environmentally Preferable Procurement

State agencies shall contract for supplies and services that are environmentally preferable, as that term is defined in 30 ILCS 500/45-26. If, however, contracting for an environmentally preferable supply or service would impose an undue economic or practical hardship on the contracting State agency, or if an environmentally preferable supply or service cannot be used to meet the requirements of the State agency, then the State agency need not contract for an environmentally preferable supply or service. Specifications for contracts, at the discretion of the contracting State agency, may include a price preference of up to 10% for environmentally preferable supplies or services. [30 ILCS 500/45-26]

History

Source: Added at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1148 Biobased Products

When a State contract is to be awarded to the lowest responsible bidder, an otherwise qualified bidder who will fulfill the contract through the use of biobased products may be given preference over other bidders unable to do so, provided that the cost included in the bid of biobased products is not more than 5% greater than the cost of products that are not biobased. [30 ILCS 500/45-75]

History

Source: Added at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1150 Correctional Industries

a) The CPO shall make available to all Procurement Officers a listing of the supplies or services available from the Department of Corrections and shall identify those that must be purchased from Corrections.

b) Those items that must be purchased from Corrections may not be procured from any other source without the express written authorization of the CPO.

c) Procurement Officers are authorized to procure from Corrections without seeking competition or giving public notice, but must inform the CPO of all such purchases.

44 Ill. Adm. Code 500.1160 Qualified Not-for-Profit Agencies for Persons with Significant Disabilities

a) Use

The Procurement Officer may determine to contract with a qualified not-for-profit agency for persons with significant disabilities on the list maintained by the State Use Committee and may do so without notice or competition.

b) Pricing Approval

While notice and competition is not required prior to contracting with qualified not-for-profit agencies for persons with significant disabilities, prices must be reasonable. Whether a price is reasonable will be determined based upon current market prices, historical prices, prices received by other State agencies for similar supplies or services, the policy of the Code to promote procurements from qualified not-for-profit agencies for persons with significant disabilities, and other such relevant factors.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.1170 Gas Mileage

a) Specifications for the purchase of new passenger automobiles shall require compliance with minimum gas mileage requirements established in Section 45-40 of the Code. As used in this Section, passenger automobile does not include station wagons, vans, four-wheel drive vehicles, emergency vehicles, or police or fire vehicles.

c) The CPO may exempt a procurement from the requirements of subsections (a) and (b) when a demonstrated need has been presented to the CPO in writing and approved by that officer.

d) In awarding contracts requiring the procurement of vehicles, preference may also be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of vehicles powered by ethanol produced from Illinois corn or biodiesel fuels produced from Illinois soybeans. [30 ILCS 500/45-60]

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1180 Small Business

a) Set-Aside

The Procurement Officer may designate as small business set-asides a fair proportion of construction, supply and service contracts for award to small businesses in Illinois.

b) Small Business List

The Procurement Officer may develop its own list, or may use the list maintained by CMS or other appropriate State agency, of responsible vendors that meet the criteria of small business. Vendors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses shall submit information acceptable to the Procurement Officer verifying that the vendor qualifies as a small business under this Part. A business that fits the definition of small on the day of bid or proposal opening will be considered small for the duration of the contract.

c) Required Use

If a Procurement Officer wishes to make a procurement covered by a set-aside designation, the solicitation must note responses are limited to those from responsible small businesses. Bids or proposals received from large businesses will be rejected as nonresponsive.

d) Withdrawal of Set-Aside

If the Procurement Officer determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the Procurement Officer shall reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question. When a small business set-aside is withdrawn, notification shall be published in the Auditor General Bulletin with an explanation. After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with the limitations of this Part.

e) Criteria for Small Business

Unless the Procurement Officer provides a definition for a particular procurement that reflects industry characteristics, a small business is one:

That is an Illinois business, independently owned and operated.
Not dominant in its field of operation. This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
With annual sales for the most recently ended fiscal year no greater than:

A) $13,000,000 for wholesale business;

B) $14,000,000 for construction business; or

C) $8,000,000 for retail business or business selling services.

With no more than 250 employees if a manufacturing business.

If the business is any combination of retailer, wholesaler or construction business, then the annual sales for each component may not exceed the amounts shown in subsection (e)(3). For example, a business that is both a retailer and wholesaler may not have total sales exceeding $21,000,000 and the retail component may not exceed $8,000,000 and the wholesale component may not exceed $13,000,000. If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed the number shown in subsection (e)(4).
When computing the size status of a vendor, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates shall be included. Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or when a third party or parties controls or has the power to control both. In determining whether concerns are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management and contractual arrangements. However, a franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1190 Contracting with Businesses Owned and Controlled by Minorities, Women and Persons with Disabilities

a) Upon direction of the CPO, the OAG may establish goals and other such preferences for contracting or subcontracting with businesses owned and controlled by minorities, women and persons with disabilities.

b) For purposes of this Section, the individuals claiming ownership and control must own at least 51% of the business.

c) The CPO may refer to the list of businesses that have been certified by CMS or other appropriate agency under the Business Enterprise Act for Minorities, Women, and Persons with Disabilities [30 ILCS 575].

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.1195 Illinois Agricultural Products

History

Source: Added at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1197 Corn-Based Plastics

History

Source: Added at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1199 Disabled Veterans

It is the goal of the State to promote and encourage the continued economic development of small businesses owned and controlled by qualified veterans and that qualified service-disabled veteran-owned small businesses (referred to as SDVOSB) and veteran-owned small businesses (referred to as VOSB) participate in the State's procurement process as both prime contractors and subcontractors. [30 ILCS 500/45-57] Upon direction of the CPO, the OAG may establish goals and other such preferences for contracting or subcontracting with SDVOSB and VOSB that are certified by the Department of Veterans' Affairs and the Department of Central Management Services.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.1200 Bribery

a) Prohibition

No person or business shall be awarded a contract or subcontract who:

has been convicted under the laws of Illinois or any other state of bribery or attempting to bribe an officer or employee of the State of Illinois or any other state in that officer's or employee's official capacity; or
has made an admission of guilt of that conduct that is a matter of record but has not been prosecuted for that conduct.

b) Businesses

the business has been finally adjudicated not guilty; or
the business demonstrates to the governmental entity with which it seeks to contract or which is a signatory to the contract to which the subcontract relates, and that entity finds that the commission of the offense was not authorized, requested, commanded, or performed by a director, officer, or high managerial agent on behalf of the business as provided in Section 5-4(a)(2) of the Criminal Code of 2012.

c) Conduct on Behalf of Business

For purposes of this Section, when an official, agent, or employee of a business committed the bribery or attempted bribery on behalf of the business and in accordance with the direction or authorization of a responsible official of the business, the business shall be chargeable with the conduct.

d) Certification

Every bid or offer submitted to every contract executed by the State and every subcontract shall contain a certification by the bidder, offeror, potential contractor, contractor, or the subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the chief procurement officer may declare the related contract void if any certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid or offer and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. A bidder, offeror, potential contractor, contractor, or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony. [30 ILCS 500/50-5]

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1210 Felons

b) Every bid or offer submitted to the State, every contract executed by the State, and every subcontract subject to this Part shall contain a certification by the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the CPO may declare the related contract void if any of the certifications required by this Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid or offer and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-10]

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1215 Prohibited Bidders and Contractors

a) Unless otherwise provided, no business shall bid, offer, or enter into a contract or subcontract if the business or any officer, director, partner, or other managerial agent of the business has been convicted of a felony under the Sarbanes-Oxley Act of 2002 (PL 107-204) or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 [815 ILCS 5] for a period of 5 years from the date of conviction.

b) Every bid and offer submitted to the State, every contract executed by the State and every subcontract shall contain a certification by the bidder, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the chief procurement officer shall declare the related contract void if any of the certifications completed pursuant to this subsection (b) are false. If the false certification is made by a subcontractor, then the contractor's submitted bid or offer and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-10.5]

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1217 Debt Delinquency

a) No person shall submit a bid or offer for, or enter into, a contract or subcontract under this Part, if that person knows or should know that he or she or any affiliate is delinquent in the payment of any debt to the State, unless the person or affiliate has entered into a deferred payment plan to pay off the debt. [30 ILCS 500/50-11 (a)] For purposes of this Section, terms shall be as defined in Section 50-11 of the Code.

b) Every bid and offer submitted to the State, every contract executed by the State and every subcontract shall contain a certification by the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor, or the subcontractor and its affiliate is not barred from being awarded a contract or subcontract under this Section and acknowledges that the chief procurement officer may declare the related contract void if any of the certifications completed pursuant to this subsection (b) are false. If the false certification is made by a subcontractor, then the contractor's submitted bid or offer and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-11(b)]

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1218 Collection and Remittance of Illinois Use Tax

a) No person shall enter into a contract with a State agency or enter into a subcontract unless the person and all affiliates of the person collect and remit Illinois Use Tax on all sales of tangible personal property into the State of Illinois in accordance with the provisions of the Illinois Use Tax Act [35 ILCS 105] regardless of whether the person or affiliate is a "retailer maintaining a place of business within this State" as defined in Section 2 of the Use Tax Act. [30 ILCS 500/50-12] For purposes of this Section, terms shall be as defined in Section 50-12 of the Code.

b) Every bid and offer submitted to the State, every contract executed by the State and every subcontract shall contain a certification by the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor, or subcontractor is not barred from bidding for or entering into a contract under subsection (a) of this Section and acknowledges that the chief procurement officer may declare the related contract void if any of the certifications completed pursuant to this subsection (b) are false. If the false certification is made by a subcontractor, then the contractor's submitted bid or offer and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-12]

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1220 Conflicts of Interest

a) Prohibition

It is unlawful for any person holding an elective office in this State, holding a seat in the General Assembly, or appointed to or employed in any of the offices or agencies of State government and who receives compensation for such employment in excess of 60% of the salary of the Governor of the State of Illinois, or who is an officer or employee of the Capital Development Board or the Illinois Toll Highway Authority, or who is the spouse or minor child of any such person to have or acquire any contract, or any direct pecuniary interest in any contract therein, whether for stationery, printing, paper, or any services, materials, or supplies, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois or in any contract of the Capital Development Board or the Illinois Toll Highway Authority. [30 ILCS 500/50-13(a)]

b) Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person listed in subsection (a) is entitled to receive more than 7 1/2% of the total distributable income or an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.[30 ILCS 500/50-13(b)]

c) Combined Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person listed in subsection (a) together with his or her spouse or minor children is entitled to receive more than 15%, in the aggregate, of the total distributable income or an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/50-13(c)]

d) Securities

Nothing in this Section invalidates the provisions of any bond or other security previously offered or to be offered for sale or sold by or for the State of Illinois.[30 ILCS 500/50-13 (d)]

e) Prior Interests

This Section does not affect the validity of any contract made between the State and an officer or employee of the State or member of the General Assembly, his or her spouse, minor child, or other immediate family member living in his or her residence or any combination of those persons if that contract was in existence before his or her election or employment as an officer, member, or employee. The contract is voidable, however, if it cannot be completed within 365 calendar days after the officer, member, or employee takes office or is employed. [30 ILCS 500/50-13 (e)]

f) Exceptions

Public aid payments. This Section does not apply to payments made for a public aid recipient.
Teaching. This Section does not apply to a contract for personal services as a teacher or school administrator between a member of the General Assembly or his or her spouse, or a State officer or employee or his or her spouse, and any school district, public community college district, the University of Illinois, Southern Illinois University, Illinois State University, Eastern Illinois University, Northern Illinois University, Western Illinois University, Chicago State University, Governor State University, or Northeastern Illinois University.
Ministerial duties. This Section does not apply to a contract for personal services of a wholly ministerial character, including but not limited to services as a laborer, clerk, typist, stenographer, page, bookkeeper, receptionist, or telephone switchboard operator, made by a spouse or minor child of an elective or appointive State officer or employee or of a member of the General Assembly.
Child and family services. This Section does not apply to payments made to a member of the General Assembly, a State officer or employee, his or her spouse or minor child acting as a foster parent, homemaker, advocate, or volunteer for or in behalf of a child or family served by the Department of Children and Family Services.
Licensed professionals. Contracts with licensed professionals, provided they are competitively bid or part of a reimbursement program for specific, customary goods and services through the Department of Children and Family Services, the Department of Human Services, the Department of Healthcare and Family Services, the Department of Public Health, or the Department on Aging.[30 ILCS 500/50-13(f)]

g) An individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise receives a direct financial benefit in conjunction with performance of a contract, including finder's fees and commission payments.

h) Distributable income means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, that is distributed to those entitled to receive a share of such income. In the case of a for-profit corporation, distributable income means "dividends". When calculating entitlement to distributable income the entitlement shall be determined at the end of the company's most recent fiscal year.

i) Exemptions

If the Procurement Officer finds a conflict of interest under this Section with the vendor selected for award or contract negotiations, the Procurement Officer shall forward to the CPO the name of the vendor and a description of the proposed contract and of the potential conflict, and shall state why an exemption should be granted. The CPO may exempt named individuals from the prohibitions of this Section when, in his or her judgment, the public interest in having the individual in the service of the State outweighs the public policy evidenced in that Section. [30 ILCS 500/50-20] Notice of each exemption shall be published in the Auditor General Bulletin and a copy shall be filed with the Secretary of State and State Comptroller prior to the contract's execution.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1230 Negotiations for Future Employment

a) It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association, or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 500/50-15(a)]

c) An individual who performs services pursuant to a contract and who meets the requirements of an "independent contractor" as opposed to an "employee" is in a "continual contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the OAG must act to terminate, or has a definite term of at least three months.

44 Ill. Adm. Code 500.1235 Environmental Protection Act Violations

a) Unless otherwise provided, no person or business found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act [415 ILCS 5] shall do business with the State of Illinois or any State agency or enter into a subcontract from the date of the order containing the finding of violation until 5 years after that date, unless the person or business can show that no person involved in the violation continues to have any involvement with the business. [30 ILCS 500/50-14(a)]

b) A person or business otherwise barred from doing business with the State of Illinois or any State agency or subcontracting under the Code by subsection (a) may be allowed to do business with the State of Illinois or any State agency if it is shown that there is no practicable alternative to the State to contracting with that person or business. [30 ILCS 500/50-14(b)]

c) Every bid or offer submitted to the State, every contract executed by the State and every subcontract shall contain a certification by the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the contracting State agency may declare the related contract void if any of the certifications completed pursuant to this subsection (c) are false. If the false certification is made by a subcontractor, then the contractor's submitted bid or offer and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-14(c)]

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1238 Lead Poisoning Prevention Act Violations

History

Source: Added at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1240 Revolving Door Prohibition

Chief procurement officers, State purchasing officers, procurement compliance monitors, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to the State agency most recently employing them in an affected position for a period of at least 6 months. The prohibition includes but is not limited to: lobbying the procurement process; specifying; bidding; proposing bid, proposal, or contract documents; on their own behalf or on behalf of any firm, partnership, association, or corporation. [30 ILCS 500/50-30]

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1250 Disclosure of Financial Interests and Potential Conflicts of Interest

a) Requirement for Disclosure

All bids and offers from responsive bidders, offerors, vendors, or contractors with an annual value of more than $100,000 shall be accompanied by disclosure of the financial interests of the bidder, offeror, potential contractor, or contractor and each subcontractor to be used. In addition, all subcontracts with an annual value of more than $100,000 shall be accompanied by disclosure of the financial interests of each subcontractor. The financial disclosure of each successful bidder, offeror, potential contractor, or contractor and its subcontractors shall be incorporated as a material term of the contract and shall become part of the publicly available contract or procurement file maintained by the appropriate chief procurement officer. Each disclosure shall be signed and made under penalty of perjury by an authorized officer or employee on behalf of the bidder, offeror, potential contractor, contractor, or subcontractor. [30 ILCS 500/50-35(a)]
Disclosure shall include any ownership or distributive income share that is in excess of 5%, or an amount greater than 60% of the annual salary of the Governor, of the disclosing entity or its parent entity, whichever is less, unless the bidder, offeror, potential contractor, contractor, or subcontractor:

A) is a publicly traded entity subject to Federal 10K reporting, in which case it may submit its 10K disclosure in place of the prescribed disclosure; or

B) is a privately held entity that is exempt from Federal 10K reporting but has more than 100 shareholders, partners or members, in which case it may submit the information that Federal 10K reporting companies are required to report under 17 CFR 229.401 and list the names of any person or entity holding any ownership share that is in excess of 5% in place of the prescribed disclosure. [30 ILCS 500/50-35(a)]

b) Definitions and General Provisions

An "offer from responsive bidders or offerors" means only those offers that are received using an Invitation for Bids or Request for Proposals under Section 500.310 or 500.320. Disclosures are not required in sole source or emergency procurements.
A "parent entity" means an entity that owns 100% of the bidding entity.
"Contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.
"Distributable" or "distributive" income means the income of a company after payment of all expenses, including employee salaries and bonuses, and retained earnings, that is distributed to those entitled to receive a share of such income. In the case of a for-profit corporation, distributable income means dividends. When calculating entitlement to distributable income, the entitlement shall be determined at the end of the company's most recent fiscal year.
"Personal services" shall be any contract for services subject to this Part, including, by way of example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from this Part under Section 500.30(a)(4).
"Competitively bid" means a contract let pursuant to Section 500.310 or 500.320.
"Subject to federal 10K reporting" means subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934. "10K disclosure" means a report required under Section 13 or 15(d) of the Securities Exchange Act of 1934.
Contractors are under a continuing obligation to promptly supplement disclosures for accuracy throughout the contracting process and throughout the term of any resulting contract. Contractors with multi-year contracts must submit disclosures on an annual basis.
10K Disclosures

A) Any vendor subject to federal 10K reporting requirements may submit its 10K to the OAG in satisfaction of this disclosure requirement. The vendor may be required to identify the specific sections or parts in the 10K disclosure containing information, if any, pertaining to those who have an ownership interest or an interest in the distributable income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State. If the financial interest or conflict of interest information requested by the OAG is not in the 10K, but is in a document referenced in the 10K, or in a document that may be submitted to the SEC in conjunction with or in lieu of the 10K, then that additional documentation shall be provided as well.

B) 10K disclosures are available for public review. Any potential conflict of interest identified by the public and brought to the attention of the CPO shall be investigated.

C) In circumstances where a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements and for purposes of the Procurement Officer's duty to consider any conflict or potential conflict of interest that may exist, but that is not subject to specific disclosure requirements of this Part, and that is not personally known by the Procurement Officer, "publicly known or reasonably available to the public" shall consist of information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure.

c) Form of Disclosure

The form of disclosure shall be prescribed by the CPO and must include at least the names, addresses, and dollar or proportionate share of ownership of each individual identified in this Section, their instrument of ownership or beneficial relationship, and notice of any potential conflict of interest resulting from the current ownership or beneficial relationship of each person identified in this Section having in addition any of the following relationships:

A) State employment, currently or in the previous 3 years, including contractual employment of services;

B) State employment of spouse, father, mother, son or daughter, including contractual employment for services in the previous 2 years;

C) Elective status; the holding of elective office of the State of Illinois, the government of the United States, any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois currently or in the previous 3 years;

D) Relationship to anyone holding elective office currently or in the previous 2 years; spouse, father, mother, son, or daughter;

E) Appointive office; the holding of any appointive government office of the State of Illinois, the United States of America, or any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois, which office entitles the holder to compensation in excess of expenses incurred in the discharge of that office currently or in the previous 3 years;

F) Relationship to anyone holding appointive office currently or in the previous 2 years; spouse, father, mother, son, or daughter;

G) Employment, currently or in the previous 3 years, as or by any registered lobbyist of the State government;

H) Relationship to anyone who is or was a registered lobbyist in the previous 2 years; spouse, father, mother, son, or daughter;

J) Relationship to anyone; spouse, father, mother, son, or daughter; who is or was a compensated employee in the last 2 years of any registered election or re-election committee registered with the Secretary of State or any county clerk in the State of Illinois, or any political action committee registered with either the Secretary of State or the Federal Board of Elections. [30 ILCS 500/50-35(b)]

The disclosure required under this Section must also include the name and address of each lobbyist required to register under the Lobbyist Registration Act [25 ILCS 170] and other agent of the bidder, offeror, potential contractor, contractor, or subcontractor who is not identified under subsection (a) and who has communicated, is communicating, or may communicate with any State officer or employee concerning the bid or offer. The disclosure under this subsection (c)(2) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-1)]
The disclosure required under this Section must also include, for each of the persons identified in subsection (c)(1) or (2), each of the following that occurred within the previous 10 years: suspension or debarment from contracting with any governmental entity; professional licensure discipline; bankruptcies; adverse civil judgments and administrative findings; and criminal felony convictions. The disclosure under this subsection (c)(3) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-2)]

d) Intent of Disclosure

The disclosure in subsection (c) is not intended to prohibit or prevent any contract. The disclosure is meant to fully and publicly disclose any potential conflict to the CPO, procurement officers, their designees, and executive officers so they may adequately discharge their duty to protect the State. [30 ILCS 500/50-35(c)]

e) Determination by Procurement Officer

When a potential for a conflict of interest is identified, discovered, or reasonably suspected it shall be reviewed by the Procurement Officer or the Procurement Officer's designee, who must rule whether to void or allow the contract, subcontract, bid, offer, or proposal weighing the best interest of the State of Illinois. Any such written determination shall become a publicly available part of the contract, bid, or proposal file. (See Section 50-35(d) of the Code.)

f) Requirements for Reasonable Care and Diligence

These thresholds and disclosure do not relieve the CPO, procurement officers, or their designees from reasonable care and diligence for any contract, bid, offer, or proposal. The CPO, procurement officers, or their designees shall be responsible for using any reasonably known and publicly available information to discover any undisclosed potential conflict of interest and act to protect the best interest of the State of Illinois. [30 ILCS 500/50-35(e)]

g) Inadvertent or Accidental Failure to Fully Disclose

Inadvertent or accidental failure to fully disclose shall render the contract, bid, offer, proposal, subcontract, or relationship voidable by the CPO if the CPO deems it in the best interest of the State of Illinois and, at the CPO's discretion, may be cause for barring from future contracts, bids, offers, proposals, subcontracts, or relationships with the OAG for a period of up to 2 years. [30 ILCS 500/50-35(f)]

h) Intentional, Willful, or Material Failure to Disclose

Intentional, willful, or material failure to disclose shall render the contract, subcontract, bid, offer, proposal, or relationship voidable by the CPO if they deem it in the best interest of the State of Illinois and shall result in debarment from future contracts, subcontracts, bids, offers, proposals, or relationships with the OAG for a period of not less than 2 years and not more than 10 years. Reinstatement after 2 years and before 10 years must be reviewed and commented upon by the CPO, who must rule in writing whether and when to reinstate. [30 ILCS 500/50-35(g)]

i) Other Procurements

In addition, all disclosures shall note any other current or pending contracts, bids, offers, proposals, subcontracts, leases, or other ongoing procurement relationships the bidder, offeror, potential contractor, contractor, or subcontractor has with any other unit of State government and shall clearly identify the unit and the contract, offer, proposal, lease, or other relationship. [30 ILCS 500/50-35(h)]

j) Continuing Obligation

The bidder, offeror, potential contractor, or contractor has a continuing obligation to supplement the disclosure required by this Section throughout the bidding process or during the term of any contract. [30 ILCS 500/50-35(i)]

History

Source: Amended at 47 Ill. Reg. 18442, effective January 1, 2024

44 Ill. Adm. Code 500.1260 Reporting Anticompetitive Practices

When, for any reason, any vendor, bidder, offeror, potential contractor, contractor, chief procurement officer, State purchasing officer, designee, elected official, or State employee suspects collusion or other anticompetitive practice among any bidders, offerors, potential contractors, contractors, or employees of the State, a notice of the relevant facts shall be transmitted to the appropriate Inspector General, the Attorney General, and the chief procurement officer. [30 ILCS 500/50-40]

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.1265 Disclosure of Business in Iran

a) Each bid or offer submitted for a State contract, other than a small purchase shall include a disclosure of whether or not the bidder, offeror, or any of its corporate parents or subsidiaries, within the 24 months before submission of the bid or offer had business operations that involved contracts with or provision of supplies or services to the Government of Iran, companies in which the Government of Iran has any direct or indirect equity share, consortiums or projects commissioned by the Government of Iran, or companies involved in consortiums or projects commissioned by the Government of Iran and:

more than 10% of the company's revenues produced in or assets located in Iran involve oil-related activities or mineral extraction activities; less than 75% of the company's revenues produced in or assets located in Iran involve contracts with or provision of oil-related or mineral-extraction products or services to the Government of Iran or a project or consortium created exclusively by that government; and the company has failed to take substantial action; or
the company has, on or after August 5, 1996, made an investment of $20 million or more, or any combination of investments of at least $10 million each that in the aggregate equals or exceeds $20 million in any 12-month period, that directly or significantly contributes to the enhancement of Iran's ability to develop petroleum resources of Iran. [30 ILCS 500/50-36]

b) A bid or offer that does not include the disclosure required by subsection (a) may be given a period after the bid or offer is submitted to cure the non-disclosure. A procurement officer may consider the disclosure when evaluating the bid or offer or awarding the contract.

c) Each Chief Procurement Officer shall provide the State Comptroller with the name of each entity disclosed under subsection (a) as doing business or having done business in Iran. The State Comptroller shall post that information on his or her official website.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1267 Lobbying Restrictions

a) A person or business that is let or awarded a contract is not entitled to receive any payment, compensation, or other remuneration from the State to compensate the person or business for any expenses related to travel, lodging, or meals that are paid by the person or business to any officer, agent, employee, consultant, independent contractor, director, partner, manager, or shareholder. [30 ILCS 500/50-38 (a)]

b) Disclosure

Any bidder, offeror, potential contractor, or contractor on a State contract that hires a person required to register under the Lobbyist Registration Act to assist in obtaining a contract shall:

A) disclose all costs, fees, compensation, reimbursements, and other remunerations paid or to be paid to the lobbyist related to the contract;

B) not bill or otherwise cause the State of Illinois to pay for any of the lobbyist's costs, fees, compensation, reimbursements, or other remuneration; and

C) sign a verification certifying that none of the lobbyist's costs, fees, compensation, reimbursements, or other remuneration were billed to the State.

The information in subsection (b)(1)(A), along with all supporting documents, shall be filed with the agency awarding the contract and with the Secretary of State. The CPO shall post this information, together with the contract award notice, in the online Procurement Bulletin. [30 ILCS 500/50-38(b)]

c) No person or entity shall retain a person or entity required to register under the Lobbyist Registration Act to attempt to influence the outcome of a procurement decision for compensation contingent in whole or in part upon the decision or procurement. Any person who violates this subsection is guilty of a business offense and shall be fined not more than $10,000. [30 ILCS 500/50-38(c)]

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1270 Confidentiality

Any chief procurement officer, State purchasing officer, designee, executive officer, or State employee who willfully uses or allows the use of specifications, competitive solicitation documents, proprietary competitive information, contracts, or selection information to compromise the fairness or integrity of the procurement or contract process shall be subject to immediate dismissal [30 ILCS 500/50-45], regardless of personnel rules, any contract, law or other agreement, and may, in addition, be subject to criminal prosecution.

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.1275 Procurement Communications Reporting Requirement

a) Reporting Requirement

Any written or oral communication received by a State employee who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract, or a project, shall be reported to the CPO. These communications do not include the following:

A) statements by a person publicly made in a public forum;

B) statements regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter;

C) statements made by an OAG employee to the Auditor General or other employees of the OAG, or to an employee of another State agency who, through the communication, is either:

i) exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the OAG; or

ii) exercising oversight, supervisory, or management authority over the procurement in the normal course of business and as part of official responsibilities;

D) Communications providing general information about a firm's products or services or industry best practices provided those products or services are not directly related to an open procurement matter;

E) communications received in response to procurement solicitations, including, but not limited to, vendor responses to a request for information, request for proposal, request for qualifications, invitation for bid, or a small purchase, sole source, or emergency solicitation, or questions and answers posted to the Auditor General Bulletin to supplement the procurement action, provided that the communications are made in accordance with the instructions contained in the procurement solicitation, procedures, or guidelines;

F) communications that are privileged, protected, or confidential under law; and

G) communications that are part of a formal procurement process as set out by statute, rule, or the solicitation, guidelines, or procedures, including, but not limited to, the posting of procurement opportunities, the process for approving a procurement or its equivalent, fiscal approval, submission of bids, the finalizing of contract terms and conditions with an awardee or apparent awardee, and similar formal procurement processes.

The reporting requirement does not apply to any communication asking for clarification regarding a contract solicitation so long as there is no competitive advantage to the person or business and the question and answer, if material, are posted to the Auditor General Bulletin as an addendum to the solicitation.
The provisions of this Section shall not apply to communications regarding the administration and implementation of an existing contract, except communications regarding change orders or the renewal or extension of a contract. [30 ILCS 500/50-39(a)]

b) The report required by subsection (a) shall be submitted monthly and include at least the following:

the date and time of each communication;
the identity of each person from whom the written or oral communication was received, the individual or entity represented by that person, and any action the person requested or recommended;
the identity and job title of the person to whom each communication was made;
if a response is made, the identity and job title of the person making each response;
a detailed summary of the points made by each person involved in the communication;
the duration of the communication;
the location or locations of all persons involved in the communication and, if the communication occurred by telephone, the telephone numbers for the callers and recipients of the communication; and
any other pertinent information. [30 ILCS 500/50-39(b)]

c) Additionally, when an oral communication made by a person required to register under the Lobbyist Registration Act is received by a State employee that is covered under this Section, all individuals who initiate or participate in the oral communication shall submit a written report to that State employee that memorializes the communication and includes, but is not limited to, the items listed in subsection (b). [30 ILCS 500/50-39(c)]

d) The CPO shall make each report submitted pursuant to this Section available on the Auditor General Bulletin within 7 calendar days after receipt of the report. No trade secrets or other proprietary or confidential information shall be included in any communication reported to the CPO. [30 ILCS 500/50-39(b)]

e) The reporting requirements shall also be conveyed through ethics training under the State Officials and Employees Ethics Act [5 ILCS 430]. An employee who knowingly and intentionally violates this Section shall be subject to suspension or discharge.

f) For purposes of this Section:

"Active Procurement Matter" means a procurement process beginning with requisition or determination of need by an agency and continuing through the publication of an award notice or other completion of a final procurement action, the resolution of any protests, and the expiration of any protest or review period, if applicable. "Active procurement matter" also includes communications relating to change orders, renewals, or extensions.
"Material Information" means information that a reasonable person would deem important in determining his or her course of action and pertains to significant issues, including, but not limited to, price, quantity, and terms of payment or performance.
"Material Argument" means a communication that a reasonable person would believe was made for the purpose of influencing a decision relating to a procurement matter. "Material argument" does not include general information about products, services, or industry best practices or a response to a communication initiated by an employee of the State for the purposes of providing information to evaluate new products, trends, services, or technologies. [30 ILCS 500/50-39(g)]

History

Source: Amended at 49 Ill. Reg. 164, effective January 1, 2025

44 Ill. Adm. Code 500.1280 Insider Information

It is unlawful for any current or former elected or appointed State official or State employee to knowingly use confidential information available only by virtue of that office or employment for actual or anticipated gain for themselves or another person. [30 ILCS 500/50-50] Any violation of this Section may result in immediate dismissal, regardless of personnel rules, any contract, law or other agreement.

44 Ill. Adm. Code 500.1285 Continuing Disclosure; False Certification

Every person that has entered into a contract for more than one year in duration for the initial term or for any renewal term shall certify, by January 1 of each fiscal year covered by the contract after the initial fiscal year, to the chief procurement officer of any changes that affect its ability to satisfy the requirements of Article 50 of the Code pertaining to eligibility for a contract award. If a contractor or subcontractor continues to meet all requirements of Article 50 of the Code, it shall not be required to submit any certification or if the work under the contract has been substantially completed before contract expiration but the contract has not yet expired. If a contractor or subcontractor is not able to truthfully certify that it continues to meet all requirements, it shall provide with its certification a detailed explanation of the circumstances leading to the change in certification status. A contractor or subcontractor that makes a false statement material to any given certification required under Article 50 of the Code is, in addition to any other penalties or consequences prescribed by law, subject to liability under the Illinois False Claims Act [740 ILCS 175] for submission of a false claim. [30 ILCS 500/50-2]

History

Source: Amended at 42 Ill. Reg. 3193, effective February 16, 2018

44 Ill. Adm. Code 500.1290 Other Violations

Any OAG employee who willfully violates or allows the violation of this Part is subject to immediate dismissal, regardless of personnel rules, any contract, law or other agreement.

44 Ill. Adm. Code 500.1300 Suspension and Debarment

a) Application

This Section applies to all debarments or suspensions of vendors from consideration for award of contracts. For purposes of this Section, references to "vendors" includes subcontractors.

b) The CPO may suspend a vendor from doing business with the OAG, or from providing specific types of supplies or services. A suspension may be issued for cause for a period of up to 10 years upon a showing the contractor or subcontractor violated any law governing the procurement transaction or this Part, or failed to conform to specifications or terms of delivery.

c) When the CPO finds cause exists for suspension or debarment, a notice of suspension or debarment, including a copy of that determination, shall be sent to the vendor. Offers will not be solicited from the vendor and, if received, will not be considered during the period of suspension or debarment.

d) The CPO may suspend a vendor for a period of time commensurate with the seriousness of the offense, but for no more than 10 years. The suspension will be effective 7 calendar days after receipt of notice unless, an objection is filed. If an objection is filed, the suspension shall not become effective until the evaluation of the objection is completed.

e) The CPO may debar a vendor. Debarment is the permanent suspension of a vendor from doing business with the OAG. A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law. Offers received from the debarred vendor or proposing the use of a debarred subcontractor will not be considered as responsive. The debarment will be effective 7 calendar days after receipt of notice, unless an objection is filed. If an objection is filed, the debarment shall not become effective until the evaluation of the objection is completed.

f) The CPO shall post the public record of suspensions and debarments that are currently in effect in the Auditor General Bulletin.

g) A vendor objecting to the suspension or debarment shall do so in writing, detailing why the action is not valid and providing any documentation to support that position. The vendor may request a hearing. This hearing shall be conducted in accordance with Section 500.1340.

h) The CPO shall maintain a master list of all suspensions and debarments. The master list shall retain information concerning suspensions and debarments as public records. These records will be maintained for a period of at least 3 years following the end of the suspension or debarment. This public information may be considered in determining responsibility.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.1310 Resolution of Contract Controversies (repealed)

History

Source: Repealed at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.1320 Violation of Law or Rule

a) Determination that Solicitation or Award Violates Law

If the CPO finds that the solicitation or proposed award is in violation of statute or rule, the CPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if such correction may be legally accomplished.

b) Determination that Contract Violates this Part

If any contract or amendment to a contract is entered into or purchase or expenditure of funds is made at any time in violation of this Part or any other law, the contract or amendment may be declared void by the CPO or may be ratified and affirmed, provided the CPO determines that ratification is in the best interests of the OAG. If the contract is ratified and affirmed, it shall be without prejudice to the State's rights to any appropriate damages.
If, during the term of a contract, the OAG determines that the contractor is delinquent in the payment of debt as set forth in Section 500.1217 of this Part, the OAG may declare the contract void if it determines that voiding the contract is in the best interests of the State.
If, during the term of a contract, the OAG determines that the contractor is in violation of Section 500.1215 of this Part, the OAG shall declare the contract void.
If, during the term of a contract, the OAG learns from an annual certification or otherwise determines that the contractor no longer qualifies to enter into State contracts, the CPO may declare the contract void if it determines that voiding the contract is in the best interests of the State.
If, during the term of a contract, the CPO learns from an annual certification or otherwise determines that a subcontractor subject to this Part no longer qualifies to enter into State contracts, the CPO may declare the related contract void if it determines that voiding the contract is in the best interests of the State. However, the related contract shall not be declared void unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor no longer qualifies to enter into State contracts. [30 ILCS 500/50-60(e)]

c) Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the OAG shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.1330 Protests

a) Procurement-Related Protests Allowed

Any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-bid/proposal meeting and any decision to reject a late bid or proposal.
Any person who has submitted a bid or proposal may protest a decision to reject the person's bid or proposal or to award to another person.

b) Protest Review Officer

The CPO may act as the Protest Review Officer (PRO) or may appoint one or more Protest Review Officers to consider the procurement-related protests and make a recommendation to the CPO for resolution of the protest. The CPO may adopt the recommendation or take other action.

c) Submission of Protest

A protesting party must submit a protest in writing to the PRO identified in the solicitation document or, in the absence of any designation, to the CPO.
The protest must be physically received by the PRO at the location specified. A postmark or other carrier mark prior to the due date and time is not sufficient to show physical receipt. Fax and email qualify as writing, but the PRO does not guarantee receipt using those means.

A) In regard to the solicitation notice or solicitation document including specifications, a protest must be received within 14 calendar days after the date the solicitation was posted to the Auditor General Bulletin and must be received by the PRO at the designated address before the date for opening bids or proposals.

B) In regard to rejection of individual bids or proposals or awards, the protest must be received by close of business no later than 14 calendar days after the protesting party knows or should have known of the facts giving rise to the protest to ensure consideration and, in any event, must be received before execution of the applicable contract.

Any notice posted to the Auditor General Bulletin establishes the "known or should have known" date for the subject matter of the notice.
Protests must be clearly marked as protests on the delivery container, the fax cover sheet or the e-mail subject line.
The written protest shall include at a minimum the following:

A) the name and address of the protesting party;

B) identification of the procurement and, if a contract has been awarded, its number or other identifier;

C) a statement of reasons for the protest specifically identifying any alleged violation of a procurement statute, a procurement rule, or the solicitation itself, including the evaluation and award (conclusions without supporting facts and arguments may not be sufficient);

D) supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated; and

E) specific relief sought.

d) Requested Information; Time for Filing

e) Stay of Procurements During Protest

Unless the CPO determines the needs of the OAG require an immediate execution of a contract, the following apply:

When a protest has been timely filed and before an award has been made, the Procurement Officer shall make no award of the contract until the protest has been resolved.
If timely received but after award, the award shall be stayed without penalty to the State.

f) Resolution

The CPO will resolve the protest by means of a written determination. The resolution may include affirming the OAG's initial decision, in whole or in part, or revoking the OAG's decision in whole or in part. The CPO will resolve the protest as expeditiously as possible after receiving all relevant, requested information.

g) Effect of Judicial or Administrative Proceedings

If an action concerning the protest has commenced in a court or administrative body, the CPO may defer resolution of the protest pending the judicial or administrative determination.

History

Source: Amended at 39 Ill. Reg. 3561, effective March 1, 2015

44 Ill. Adm. Code 500.1340 Hearing Procedures

a) General

Any hearing required or offered in this Part shall be conducted in accordance with the procedures within this Section.

b) Informal Process

c) Hearing Officers

The CPO may appoint one or more Hearing Officers to conduct the hearing. If more than one Hearing Officer is assigned to conduct a hearing, one shall be designated as the Chief Hearing Officer.
The Hearing Officer may require that the Procurement Officer attend the hearing or be part of the Hearing Panel.
The Hearing Officer will hear and consider information presented by interested persons and make a recommendation to the CPO regarding the validity of the determination of the subject matter of the hearing.
The Hearing Officer shall be responsible for the orderly conduct of the hearing by exercising discretion in:

A) Scheduling, starting and ending the hearing;

B) Setting the order of activities;

C) Setting reasonable time limits for oral statements;

D) Resolving any conflicts that may arise during the hearing.

The Hearing Officer may cancel a hearing at any time prior to commencing a hearing, including making an announcement at the scheduled hearing date, time and location, but shall give as much advance notice as possible under the circumstances. A notice confirming the cancellation and any reschedule information will be published in the Auditor General Bulletin.
The Hearing Officer may change a scheduled hearing date, time or location prior to commencing a hearing by posting a notice outside the hearing room and by posting a notice to the Auditor General Bulletin. The hearing should be continued to the next practicable date. In setting the next practicable hearing date, the Hearing Officer may take into consideration the schedule of the parties, the hardship to witnesses or the general public, travel and logistical considerations and any other matters that would affect public participation in the hearing.
After commencing a hearing, the Hearing Officer may reconvene a hearing by announcing the new date and time at the hearing and posting the new date and time outside the hearing room. The hearing shall be continued to the next practicable date in accordance with subsection (c)(6).

d) Notice of Hearing

Notice that a hearing will be held to receive testimony or written comments regarding the subject matter identified in the notice will be published in the Auditor General Bulletin. The hearing notice shall be published in the Auditor General Bulletin as soon as practicable.
The hearing may be held as soon as the first working day following the end of the notice period. The notice shall contain the following information and may describe more than one matter to be considered at the same hearing:

A) The name of the affected parties (e.g., State agency and vendor);

B) A description of the subject matter;

C) A justification for the action under review;

D) Requirements for testifying or submitting written comments;

E) Hearing contact information;

F) The date, time and location of the hearing;

G) A statement that all written comments and oral testimony shall be considered public record and open to review by the public;

H) A statement of, or reference to, this Section.

e) Written Comments and Oral Testimony

Interested parties wishing to comment for or against the determination may do so in writing alone, may testify in person and may submit written comments reflecting the oral testimony.

Written Comments

A) Submission of Written Comments. Written comments are requested by the hearing registration deadline, shown in the Auditor General Bulletin notice, to aid the Hearing Officer in preparing for the hearing. However, all written comments received by the hearing date will be considered.

B) Incorporation of Written Comments. If the Hearing Officer has received any written comment, the name and affiliation of the person submitting the comment shall be stated for the record and the written comments shall be incorporated into the record. In addition, the Hearing Officer may read excerpts from or summarize the basic points of the written comments for the record.

Oral Testimony

A) Advance Registration. Any person who wishes to testify is requested to register with the Hearing Contact. Advance registration is requested to allow for efficient scheduling and to ensure the hearing room has sufficient capacity for those who wish to testify. Those who register in advance will be heard first on the matter for which they registered. The Hearing Officer has discretion to limit testimony for the efficiency of the hearing.

B) Written Copy of Testimony Requested. Written comments reflecting proposed oral testimony are requested by the hearing registration deadline shown in the Auditor General Bulletin notice to allow the Hearing Officer time to prepare for the hearing. A person testifying may submit written comments along with the testimony. The Hearing Officer may request a written copy of the oral testimony.

C) Witness Slip Required. Each person providing oral testimony must complete a witness slip and provide it to the Hearing Officer as instructed.

D) Duration of Testimony. Each interested party shall have a reasonable period of time to present his or her position based on the complexity of the issue and the press of other business.

f) Sole Source and Emergency Contract Extensions − Supplemental Provisions

The notice, including attachments, as shown in the Auditor General Bulletin represents the position of the OAG. The Hearing Officer shall have the notice placed into the record. A copy of the notice will be posted in the hearing room.
The Procurement Officer shall attend the hearing if any person registers in advance to testify in opposition to the sole source or emergency contract extension determination. Attendance may be by video or audio. The Procurement Officer shall respond to questions of the Hearing Officer.
The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative. The Hearing Officer may allow parties to engage in dialogue and allow follow-up questions and answers as needed to ensure full understanding of the matter. The Hearing Officer is not required to respond to substantive questions at the hearing nor make commitments regarding the content of his or her recommendation.

g) Suspension and Debarment − Supplemental Provisions

The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative. The Hearing Officer is not required to respond to substantive questions at the hearing or make commitments regarding the content of his or her recommendation.
Both the OAG and the vendor affected by a suspension or debarment may, at the discretion of the Hearing Officer, bring in witnesses to present testimony regarding the facts or circumstances that led to the determination to suspend or debar.
In addition to responding to questions of the Hearing Officer, the witnesses shall respond to questions by the affected vendor if, at the discretion of the Hearing Officer, the questions are allowed.

A) The Hearing Officer may allow questions when the subject matter of the question is relevant and the questioning will not unnecessarily delay the proceedings.

B) The Hearing Officer may deny questions when the subject matter seeks only to unnecessarily embarrass the witness or delay the proceedings.

h) Recommendation

After conclusion of the hearing, the Hearing Officer shall review the OAG's position, any information obtained from public comment (written or oral), applicable laws, rules and written policies, and other information deemed relevant.

i) Decision of the CPO

The CPO shall, after considering the Hearing Officer's recommendation, make a decision in writing (which may be electronic) to uphold or overturn, in whole or in part, the OAG's decision.
The CPO may request additional information from the Hearing Officer, or any other party, including supplemental comments or testimony from the interested parties, prior to making a decision.
The CPO may adopt the recommendation, in whole or in part, or may reject the recommendation, or may write a separate decision.

j) Notice of Decision

The decision of the CPO shall be provided to the impacted parties. A copy of the decision shall be posted to the Auditor General Bulletin.
Upon posting notice of a decision upholding the determination, the OAG may take action to have the contract executed.

k) Maintenance of Records

History

Source: Added at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.1400 General

In an effort to make the procurement process more efficient, State and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to utilize each others' procurement contracts. This authority is governed by this Subpart and the Governmental Joint Purchasing Act [30 ILCS 525].

44 Ill. Adm. Code 500.1410 No Agency Relationship

In any joint procurement situation, the governmental unit must issue its own purchase order, accept its own deliveries and make its own payments. The State of Illinois shall not have any obligation to the vendor for payment of orders placed by other governmental units.

44 Ill. Adm. Code 500.1500 Severability

If any provision of this Part or any application of it to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or application, and to this end the provisions of this Part are declared to be severable.

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1510 Finality of Determinations

Determinations made by the OAG under this Part are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

44 Ill. Adm. Code 500.1520 Government Furnished Property

If the OAG provides any property to the vendor in furtherance of the contract, such property shall remain the property of the State but may be consumed by the vendor if necessary to complete the contract. Vendor will issue a receipt for the property and will be responsible for its safekeeping and return of unused property to the State.

44 Ill. Adm. Code 500.1530 Inspections

a) Inspection of Plant or Site

The OAG may enter a vendor's or subcontractor's plant or place of business to:

inspect supplies or services for acceptance by the State;
audit the books and records of any vendor or subcontractor;
investigate an action to debar or suspend a person from consideration for award of contracts pursuant to this Part;
determine whether the standards of responsibility have been met or are capable of being met;
determine if the contract is being performed in accordance with its terms; and
accomplishing any other purpose permitted by law.

b) When an inspection is made in the plant or place of business of a vendor or subcontractor, the vendor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.

c) Inspection or testing of supplies and services performed at the plant or place of business of any vendor or subcontractor shall be performed so as to not unreasonably delay the work of the vendor or subcontractor.

History

Source: Amended at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.1540 Records and Audits

a) Retention of Books and Records

Books and records that relate to performance of a State contract, including subcontracts, and that support amounts charged to the State, shall be maintained:

A) by a contractor, for a period of three years from the later of the date of final payment under the prime contract or completion of the contract;

B) by a subcontractor, for a period of three years from the later of the date of final payment under the subcontract or completion of the subcontract; and

C) by a contractor and subcontractor for such longer period of time as is necessary to complete ongoing or announced audits. The three year period shall be extended for the duration of any audit in progress at the time of that period's expiration.

Failure to maintain the books and records required by this Section shall establish a presumption in favor of the State for the recovery of any funds paid by the State for which required books and records are not available.

b) Contract Audit

Types of Contracts Audited. The type of contract under which books and records should be audited is that in which price is based on costs or is subject to adjustment based on costs, or that in which auditing would be appropriate to assure satisfactory performance, such as a time and material contract.
Situations in which an audit may be warranted include but are not limited to when a question arises in connection with:

A) the financial condition, integrity, and reliability of the contractor or subcontractor;

B) any prior audit experience;

C) the adequacy of the contractor's or subcontractor's accounting system;

D) the number or nature of invoices or reimbursement vouchers submitted by the contractor or subcontractor for payment;

E) the use of federal assistance funds;

F) the fluctuation of market prices affecting the contract; or

G) any other situation when the Procurement Officer finds that such an audit is necessary for the protection of the State's best interest.

History

Source: Amended at 35 Ill. Reg. 5307, effective April 1, 2011

44 Ill. Adm. Code 500.1545 Taxes, Licenses, Assessments and Royalties

a) The contractor shall pay all current and applicable city, county, State and federal taxes, licenses or assessments, including federal excise taxes, due on the performance of any contract, including, without limiting the foregoing, those required by the Federal Insurance Contribution Act (26 USC 3101 et seq.), the Federal Unemployment Tax Act (26 USC 3301 et seq.) and the State Unemployment Insurance Act [820 ILCS 405], together with all royalties due for any proprietary items. The contractor is exclusively liable for the payment of taxes to the respective governments. In the event the taxes, licenses, assessments or royalties, or any part thereof, are in the first instance charged to the OAG, the contractor shall, upon timely demand of the OAG, pay the OAG the amount of the tax, license, assessment or royalty due, plus all penalties that may have accrued.

b) The OAG is exempted by Section 3-5 of the Use Tax Act [35 ILCS 105/3-5] from paying any of the taxes imposed by that Act, and sales to the OAG are exempt by Section 2-5(11) of the Retailers' Occupation Tax Act [35 ILCS 120/2-5(11)] from any of the taxes imposed by that Act. The OAG will provide its exemption numbers to vendors in order to receive an exemption from tax when making purchases of tangible personal property. Contractors making purchases from vendors of tangible personal property that will be incorporated into real estate owned by the OAG must present vendors with the OAG's exemption number and other required documentation in order to receive an exemption from tax.

c) Offerors must not include in their prices any allowance for payment under Federal Excise Tax if the OAG is exempt from those taxes. If an order or contract is awarded for the purchase of an item that is subject to Federal Excise Tax, the OAG will furnish the vendor with an exemption certificate upon request.

History

Source: Added at 37 Ill. Reg. 3741, effective April 1, 2013

44 Ill. Adm. Code 500.1550 No Waiver of Sovereign Immunity

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.

Chapter VIII Department of Natural Resources

Part 610 Plugging and Restoration Contracts

44 Ill. Adm. Code 610.100 Definitions

"Bid List" – means the list of prequalified bidders compiled and maintained by the Illinois Department of Natural Resources, Office of Mines and Minerals.

"CMS" – means the Illinois Department of Central Management Services.

"CMS Standard Procurement Rules" – means the standard procurement rules of the Illinois Department of Central Management Services as codified under 44 Ill. Adm. Code 1.

"Department" – means the Illinois Department of Natural Resources, Office of Mines and Minerals.

"Emergency Clean-up Project" – means an emergency crude oil production facility, or crude oil or saltwater spill clean-up or remediation of conditions endangering public health or safety or contaminating surface waters, ground water, or the surface of the land.

"Emergency Repair Work" – means work to repair or contain leaks of produced fluids from production equipment, pits, or other containment structures that are contaminating surface waters or ground waters, or are flowing in sufficient quantity to create an increasing area of contamination on the surface of the land.

"Emergency Well Plugging" – means the plugging and abandonment of a well or wells that are actively flowing oil or saltwater and are contaminating surface waters or ground waters or are flowing in sufficient quantity to create an increasing area of contamination on the surface of the land, or a well leaking natural gas or hydrogen sulfide gas in sufficient quantity to endanger public safety or create a fire hazard or a non-leaking well that poses an imminent danger to public safety.

"IFB" – means an invitation for bids whereby the Department solicits bids from vendors for the completion of a Standard, Emergency Clean-up, Emergency Repair, or Emergency Well Plugging PRF Project or salvage equipment sale. Bids may be solicited for proposed unit prices, such as for bags of cement and rig time, or for completion of an entire project, or for purchase of salvage production equipment determined to be abandoned in accordance with the Illinois Oil and Gas Act.

"PRF" – means the Department's Plugging and Restoration Fund as established under Section 6 of the Illinois Oil and Gas Act [725 ILCS 225].

"PRF Project" – means a Standard Project, Emergency Clean-up Project, Emergency Well Plugging, Emergency Repair Work or Salvage Plugging Project funded by the Plugging and Restoration Fund.

"Salvage Plugging and Restoration Project" – means a Plugging and Restoration Project whereby abandoned wells are plugged or well site equipment removed and the site cleaned up for the value of the salvage.

"Salvage Equipment Sale" – means sale, by private means or bid, of salvage production equipment associated with abandoned wells in the Plugging and Restoration Program.

"Secretary of State" – means the Secretary of State of the State of Illinois.

"Standard Plugging and Restoration Project" – means a PRF Project that has been determined by the Department to not be an Emergency Project whereby abandoned wells are plugged following a bidding process.

"Supervisor" – means the Supervisor of the Oil and Gas Division of the Department of Natural Resources, Office of Mines and Minerals.

"Well Site Equipment" – means the equipment including but not limited to an associated tank battery and production facility equipment, hydrocarbons from the well that are stored in tanks located on the lease, and hydrocarbons recovered during the plugging operation may be sold at a public auction or a public or private sale. All well site equipment and hydrocarbons acquired by a person by sale shall be acquired under clear title, subject to any perfected prior legal or equitable claims. [225 ILCS 725/19.6(g)(2)]

History

Source: Amended at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.110 Incorporation of Rules

The Department hereby adopts the CMS Standard Procurement Rules. Inasmuch as the rules of this Part may differ, however, the rules of this Part shall govern.

44 Ill. Adm. Code 610.120 Prequalification of Bidders

a) The Department shall maintain a list of prequalified bidders for Standard Emergency and Salvage Plugging contracts. A vendor on the bid list shall be presumed to be a responsible bidder.

b) Any vendor not on the bid list may be determined to be a responsible bidder for a particular project if at the time of contract award the vendor meets the criteria for prequalification set out under this Section, including having submitted a complete request for placement on the bid list as provided herein.

c) Any vendor may request at any time to be prequalified and placed on the bid list by completing a request on a form prescribed by the Department and signing the written request. If the vendor is a business entity, such as a corporation, the request must be signed by a person authorized to enter into contracts on behalf of that entity.

d) The request shall contain the following information:

A summary of the vendor's plugging and restoration experience, including a description of the five most recent plugging and restoration projects the vendor has performed and the names and addresses of the persons or entities for whom the vendor performed such work. If the vendor has not performed five such projects, then the vendor shall so state.
All plugging and restoration equipment the vendor owns. If the vendor does not own all the equipment that may be generally needed on a plugging and restoration project the vendor must state from whom and under what arrangement, e.g. by lease, the vendor shall obtain the necessary equipment.
The location of the vendor's home office, from which all applicable mileage is to be calculated.
Certifications as required by Illinois law for any contract with the State of Illinois.
If a business entity, the vendor shall also identify the principal owners and officers of the vendor and the nature of the vendor's organization, for instance whether it is incorporated. If the vendor is a corporation the vendor must identify the state in which it is incorporated, if incorporated in Illinois whether it is presently in good standing with the Secretary of State's office, and if incorporated in another state whether it is currently authorized to do business in Illinois.
The vendor's Federal Taxpayer Identification Number.
Whether there is currently a Director's Decision of the Department outstanding against the vendor, under which the vendor is currently in violation of any law or regulation administered by the Department, and if so what violations and the date on which the violations shall be abated.

e) Upon receipt of a request for inclusion on the Department's bid list the Department shall review the request to determine whether the vendor is responsible. The Department may require the vendor submit additional information the Department may need to knowledgeably make the determination of responsibility under subsection (f) of this Section.

f) The Department shall determine that a vendor is responsible if the vendor has submitted a complete request in compliance with this Subpart and based on the information contained in the request, any additional information supplied by the vendor, and the records of the Department, the Department finds that the vendor:

Has adequate experience to properly perform plugging and restoration work. A vendor shall be presumed adequately experienced if it has successfully performed plugging and restoration projects on at least five wells.
Has adequate equipment available to perform plugging and restoration work. The vendor must own at a minimum a rig sufficient to set cement as required by the Department to properly plug wells, set bridge plugs, and shoot and pull casing. The Department may inspect the equipment of the vendor to determine the adequacy of the equipment.
Has access to, either through lease or ownership, adequate equipment, in addition to a rig, to perform plugging and restoration work.
Does not have outstanding against it a Director's Decision, under which the vendor is currently in violation of any law or regulation administered by the Department, or is owned or operated by individuals who are so in violation, such that the vendor would be prohibited from receiving a permit from the Department.
If an Illinois corporation, is currently in good standing with the Secretary of State's office, and if a foreign corporation is currently authorized to do business in the State of Illinois.
Certifies it can, and will, comply with all applicable State laws and regulations.

g) If any information supplied by the vendor on its request form materially changes such that the information is no longer true, the vendor shall immediately report such change to the Department.

h) A vendor may be removed from the bid list if:

The vendor fails to adequately perform the work required under any PRF Project. The Department shall make its determination under this subsection on the basis of the quality and timeliness of the work, and the compliance with the directives from the Department's site manager in performing any PRF project.
The vendor no longer meets the requirements for being placed on the bid list.
The vendor fails to inform the Department of a material change in the information supplied in the request.
Any statement of the vendor on the request is discovered to be false.

History

Source: Amended at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.200 Applicability

The rules of this Subpart apply to Standard Projects.

44 Ill. Adm. Code 610.210 Scope

A Standard PRF Project may include one or more particular wells to be plugged and sites to be restored; a single leasehold on which all wells are to be plugged, well sites to be restored and lease site to be restored; or several lease sites on which all wells are to be plugged, well and lease sites to be restored.

History

Source: Amended at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.220 Work to Be Performed

The Department shall have the discretion to determine what plugging and restoration work shall be done under any particular project and may reserve the authority to modify the work to be performed during the course of the project.

44 Ill. Adm. Code 610.230 Invitation for Bids

Based on the nature of the particular project, the information available regarding the wells to be plugged, and all other relevant criteria, the Department may in its discretion seek bids on a particular project either on the basis of a single price for completion of the entire project or on the basis of itemized prices for the various services and equipment necessary for completion of the project, or both.

44 Ill. Adm. Code 610.240 Notification of Vendors

Vendors currently on the Department's prequalified bid list shall receive a copy of the IFB. The Department shall also notify the public by posting a notice in the state newspaper as provided in the Department of Central Management Services standard procurement rules. Any vendor, whether or not on the bid list, may upon specific request by the vendor receive a copy of a particular IFB.

44 Ill. Adm. Code 610.250 Content of the Invitation for Bids

The IFB shall contain the following information:

a) The location of the wells to be plugged.

b) The work to be performed at each well and lease site.

c) The manner in which a vendor must make its bid or proposal.

d) The date, time and place where the bids or proposals are to be opened.

e) Whether the vendor must itemize unit prices.

f) The terms that the Department intends to incorporate into the ultimate contract for completion of the project, including any insurance and performance bond requirements.

44 Ill. Adm. Code 610.260 Evaluation of Bids

Bids shall be evaluated on the basis either of the price bid for the entire project or the unit prices, whichever is applicable. Where proposed unit prices are solicited, such as for bags of cement and hours of rig time, the Department shall evaluate each bid on the basis of the anticipated number of units to complete a given well plugging and lease site restoration in determining which proposal offers the lowest expected price. The responsible vendor proposing the lowest expected price shall be determined as offering the best responsible proposal.

44 Ill. Adm. Code 610.270 Negotiation

After determining the best bid the Department shall attempt to negotiate a contract with the vendor making such bid. Where the Department is unable to satisfactorily negotiate a contract with the vendor offering the best bid the Department may attempt to negotiate a contract with the vendor offering the next best bid.

44 Ill. Adm. Code 610.280 Contract Terms

The contract shall be explicitly made in compliance with all applicable State laws and rules, including the CMS standard procurement rules not superceded by these rules, and shall contain provisions required by such laws and rules and any additional terms to which the parties have agreed.

44 Ill. Adm. Code 610.300 Applicability

This Subpart applies to Emergency Clean-up Projects, Emergency Repair Work and Emergency Well Plugging Projects.

History

Source: Amended at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.310 Scope

An emergency project may include the clean-up or remediation of conditions occurring at crude oil production facilities endangering public health or safety or contaminating surface or ground waters or the surface of the land; repair work to contain leaking produced fluid from wells, tanks, pits, or containment dikes; or plugging of leaking wells endangering the environment or public health and safety.

History

Source: Amended at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.320 Work to Be Performed

The Department shall have the discretion to determine what Clean-up, Repair Work or plugging and restoration work shall be done under any particular project covered by this Subpart and may reserve the authority to modify the work to be performed during the course of the project.

History

Source: Amended at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.330 Contracts for Individual Emergency Projects

a) If the Department has not established a regional contract under Section 605.340 of this Part to cover the region wherein a particular emergency project is located, then the Department may award a contract for that emergency project pursuant to the requirements of this Section.

b) The Department may obtain a contract for an individual emergency project by direct negotiation. For such contracts the Department may restrict negotiations to a vendor on the bid list that has its home office in the county where the project is to be located, or where there are no such vendors to the vendor whose home office is located in a county nearest to the county where the project is to be located.

c) Where the Department is unable to negotiate a satisfactory contract with the nearest vendor as determined under subsection (b) above the Department may choose to negotiate a contract directly with the next nearest vendor on the bid list.

d) The provisions of this Section are not intended to limit the Department's authority to choose to solicit competitive bids or proposals from all vendors on the bid list where the exigencies of the emergency allow.

44 Ill. Adm. Code 610.340 Regional Contracts

a) The Department may award a contract for all emergency projects arising within a particular geographical region and within a particular period of time. Such regional contracts shall be bid out by means of an IFB submitted to all vendors on the bid list.

b) After determining the best proposal the Department shall attempt to negotiate a contract with the vendor making such bid.

c) The IFB shall contain the following information:

The counties to be covered by the proposed regional contract.
The work generally to be performed under each emergency well plugging project and each emergency remedial work project.
The manner in which a vendor must make its proposal.
The date, time and place where the proposals are to be opened.
The terms that the Department intends to incorporate into the ultimate contract for completion of the project.

d) Vendors currently on the Department's prequalified bid list shall receive a copy of the IFB. The Department shall also notify the public by posting a notice in the state newspaper as provided in the CMS Standard Procurement Rules. Any vendor, whether or not on the bid list, may upon specific request receive a copy of a particular IFB.

e) Bids shall be evaluated on the basis either of the price bid for the entire project or the unit prices, whichever is applicable. Where proposed unit prices are solicited, such as for bags of cement and hours of rig time, the Department shall evaluate each bid on the basis of the anticipated number of units to complete a given well plugging and lease site restoration in determining which proposal offers the lowest expected price. The responsible vendor proposing the lowest expected price shall be determined as offering the best responsible proposal.

f) After determining the best proposal the Department shall attempt to negotiate a contract with the vendor making such proposal.

44 Ill. Adm. Code 610.350 Contract Terms

The contract shall be explicitly made in compliance with all applicable state laws and rules, including the CMS Standard Procurement Rules not superceded by these rules, and shall contain provisions required by such laws and rules and any additional terms to which the parties have agreed.

44 Ill. Adm. Code 610.400 Applicability

This Subpart applies to Plugging and Restoration Program projects where the cost of plugging a well or wells or the clean-up of the well site is offset by the salvage value of the well site equipment.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.410 Scope

A Salvage Plugging or Restoration Project may include one or more particular wells to be plugged and well sites to be restored; a single leasehold on which all wells are to be plugged, well sites to be restored and lease site to be restored; or several lease sites on which all wells are to be plugged and well and lease sites to be restored.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.420 Work to Be Performed

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.430 Contracts and Salvage Estimates

a) Based on the nature of the Salvage Plugging or Restoration Project, the information available regarding the wells to be plugged or well site equipment to be removed, the estimated value of the salvage production equipment, and all other relevant criteria, the Department may enter into a no cost contract to plug a well or group of wells on a lease or part of a unit on the basis of the total cost to plug the well or wells or to remove the well site equipment and clean up the well site to be offset by the value of the salvage production equipment. The Department will transfer control of the abandoned salvage equipment at the time a contract is signed.

b) The estimated salvage value of the well site equipment shall be determined by the Department but shall not be less than the following:

Pumping unit

$100 each

Steel tank

$75 each

Fiberglass

$100 each

Gunbarrel

$50 each

Heater treater

$75 each

Injection pump

$100 each

Reusable shed/outbuildings

$1 per square foot

Salable hydrocarbons per barrel price at time of sale

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.440 Eligible Vendors

In contracts involving the plugging of wells, only vendors currently on the Department's prequalified bid list are eligible for contracts under this Subpart.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.450 Contract Terms

The contract shall be explicitly made in compliance with all applicable State laws and rules, including the CMS property disposition rules not superseded by this Part, and shall contain provisions required by such laws and rules and any additional terms to which the parties have agreed.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.500 Applicability

This Subpart applies to the sale of abandoned well site equipment. The proceeds of any sale shall be deposited in the Plugging and Restoration Fund.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.510 Scope

The sale of abandoned equipment to interested parties may be by private sale, if less than $2500 per individual item of production equipment, or by bid if over $2500 per individual item of production equipment.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.520 Equipment to Be Sold

Abandoned well site production equipment associated with wells in the Plugging and Restoration Program are eligible under Section 19.6 of the Illinois Oil and Gas Act to be sold through private or public bid sale. The Department shall have the discretion to determine which items of equipment are eligible for sale.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.530 Private Sale

If the estimated salvage values, as determined by the Department, of the abandoned production equipment are less than $2500 per individual item of production equipment, the Department may sell and transfer control of the equipment to any interested party. Payment under term of a private sale shall be by cashier's check or money order payable to the Plugging and Restoration Fund.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

44 Ill. Adm. Code 610.540 Bid Sale

a) If the estimated salvage value, as determined by the Department, of the abandoned production equipment is greater than $2500 per individual item of production equipment, the Department shall sell such equipment by means of a bid sale.

b) Vendors currently on the Department's prequalified bid list shall receive a copy of the IFB. The Department shall also notify the public by posting a notice in the State newspaper as provided in the Department of Central Management Services Standard Procurement Rules (44 Ill. Adm. Code 1). Any vendor, whether or not on the bid list, may, upon specific request by the vendor, receive a copy of a particular IFB.

c) The IFB shall contain the location and description of the individual well site production equipment and, if applicable, a minimum acceptable bid amount.

d) Bids shall be evaluated on the basis of the highest amount bid on the equipment.

e) After determining the best bid the Department shall negotiate a sale agreement with the vendor making such bid. Where the Department is unable to satisfactorily negotiate a sale agreement with the vendor offering the best bid, the Department may attempt to negotiate a sale agreement with the vendor offering the next best bid.

f) Payment shall be made by cashier's check or money order payable to the Plugging and Restoration Fund.

History

Source: Added at 23 Ill. Reg. 3421, effective March 8, 1999

Chapter IX Department of Transportation

Part 625 Selection of Architectural, Engineering and Land Surveying Services

44 Ill. Adm. Code 625.10 Purpose

The purpose of this Part is to provide for the selection of architect-engineer consultant firms on the basis of a comparative evaluation of professional and technical qualifications that are considered essential to satisfactorily performing the services required, including related professional disciplines required to fully evaluate the environmental impact of proposed improvements. It is also a purpose of this Part to provide for the documentation of actions taken under this Part. All documents created shall, unless otherwise provided in this Part or unless otherwise provided by law, be maintained in accordance with any applicable records management policy and be available for public inspection.

44 Ill. Adm. Code 625.20 Applicability

a) General

The requirements of this Part are applicable to all architectural, engineering and land surveying services provided to the Department pursuant to contract unless provided otherwise in this Part. This Part is intended to cover all services acquired pursuant to the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act (the Act) [30 ILCS 535], unless specifically covered by another applicable law or regulation.

b) Small Contracts

Sections 625.50, 625.80 and 625.100 do not apply to architectural, engineering and land surveying contracts with an estimated basic professional services fee of less than $25,000. (See Section 45 of the Act.)

c) Emergency Services

Sections 625.50, 625.80 and 625.100 do not apply in the procurement of architectural, engineering and land surveying services by the Department when the Department determines in writing that it is in the best interest of the State to proceed with the immediate selection of a firm, or in emergencies when immediate services are necessary to protect the public health and safety, including, but not limited to, earthquake, tornado, storm, or natural or man-made disaster. (See Section 50 of the Act.)

History

Source: Amended at 33 Ill. Reg. 15878, effective October 30, 2009

44 Ill. Adm. Code 625.30 Equal Employment Opportunity; Nondiscrimination; Affirmative Action

It is the policy of the Department to execute and administer contracts hereunder in accordance with applicable State and Federal laws and regulations regarding nondiscrimination in the hiring of employees or firms, on the basis of race, color, religion, sex or national origin and regarding affirmative action. While every attempt is made to apprise potential consultants of the requirements this policy may impose upon them, the lack of such apprisal will not preclude the Department from requiring compliance with such applicable laws and regulations as a condition to continued payment for work completed under a contract with the Department; nor will the lack of such apprisal preclude the Department from requiring the return of such payments which would not have been made if, at the time of payment, the Department had been aware of any noncompliance.

44 Ill. Adm. Code 625.40 Prequalification

All architect-engineer consultant firms desiring to provide services to the Department, whether as prime consultants or subconsultants, must be prequalified before any consideration can be given to their proposals. Prequalification must be obtained no later than the final date established for the receipt of proposals on any particular work. Provided, however, that a firm which is prequalified for one or more types of work on the final date established for the receipt of proposals may submit supplemental information necessary to establish prequalification for an additional type or types of work; such supplemental information must be received by the Consultant Services Unit no later than three working days prior to the Consultant Selection Committee meeting. Prequalification procedures are as follows:

a) A properly completed "Statement of Experience and Financial Condition" (SEFC) form with required attachments must be filed with the Division of Highways, Consultant Services Unit. Because of varying workloads, it is not possible for the Department to guarantee that SEFC's will be processed within a particular time period. Accordingly, a firm desiring to become prequalified in order to be considered for a particular job should file its SEFC as early as possible.

b) The Consultant Services Unit will consider the SEFC and attachments and will notify a firm of the size and types of service it is qualified to perform. When this notice is given, a firm is prequalified.

c) The prequalification notice provided in (b) above will, unless otherwise changed by the Department, be effective from the time notice is given until 18 months after the end of the firm's last-reported fiscal year. At that time, the prequalification automatically expires and a firm's proposals cannot be considered until prequalification is obtained again. In order to avoid expiration of its prequalification, a firm should submit as early as possible after each fiscal year end a complete and updated SEFC.

d) Each firm has a continuing obligation to notify the Department of any change which would be likely to impair significantly its ability to perform successfully any work for which it might be considered.

e) A firm may be removed from the list of prequalified consultants for a particular type of service if an evaluation of its work for the Department indicates that this service was determined to be poor on a single project or below adequate on two or more projects. At the conclusion of each contract, the Department shall evaluate the consultant's overall performance, considering the quality and adequacy of final plans and documents, the extent of corrections and resubmittals, cooperation in meeting District requests and making revisions, any failure to meet established schedules due to poor or slow work, and claims for extra work and adequacy of support. The firm shall be advised of the specific deficiencies and shall be reinstated only after it submits sufficient evidence that such deficiencies have been corrected.

f) All inquiries regarding the procedures or information required for prequalification shall be referred to the Consultant Services Unit.

g) Unless otherwise required by law, the Department will maintain and treat all information required under Section 625.40 as confidential and as for use only by the Department or another governmental agency entitled by law or by agreement to use such information.

44 Ill. Adm. Code 625.50 Solicitation

The official notice of the Department's needs for architectural or engineering services or any other services being procured hereunder shall be published in its Professional Service Bulletin. Such notice shall describe the requirements of each project as they apply to the scope of the work; the time for completion; professional and technical expertise necessary; and, if applicable, the required proximity of the firm to the Departmental District or Bureau in charge of the work. The Consultant Services Unit shall issue a copy of the bulletin to all architect-engineer consultant firms that are prequalified with the Department for the type of service(s) needed.

44 Ill. Adm. Code 625.60 Statements of Interest

All firms desiring to be considered as prime consultants for a project must submit a statement of interest to the Consultant Services Unit by the date specified in the corresponding bulletin. The bulletin shall specify the types of information that must be included in the statement. Such information shall include, but need not be confined to, the following:

a) The known workload of the firm's transportation staff.

b) A staffing plan that designates the key personnel and shows the number and classification of personnel that will be assigned to the project and any work that the firm proposes to subcontract.

c) The existing office where the majority of the work will be performed.

44 Ill. Adm. Code 625.70 Confirmation of Eligibility

a) The Consultant Services Unit shall determine the eligibility of each firm that responds to a solicitation. A firm shall be considered ineligible and shall be excluded from the selection process for any one of the following reasons:

It is not prequalified for the type(s) or volume of service required;
It does not have sufficient expertise or work force for the particular job;
It does not have a sufficient financial rating or accounting system for the type of contract contemplated;
The Department has determined that the firm does not have an acceptable affirmative action program;
If the Consultant is to be retained to prepare contract plans for a facility which will carry railroad traffic, and the owning railroad determines that a particular firm is unacceptable.

b) Any firm determined to be ineligible under this Section shall be notified of such determination and the reason(s) therefor.

44 Ill. Adm. Code 625.80 Preliminary Review and Ranking

a) Following the confirmation of each firm's eligibility, the Director of the requesting Division or Office, or the Director's designated representative(s), and the Consultant Services Unit shall review the firm's experience data, its statement of interest, and any evaluations of its previous work for the Department. Based upon this review, the Consultant Services Unit will rank the firms in order of apparent ability to perform the work. Such review and ranking shall take into consideration at least the following factors:

Previous experience in the type(s) of service required;
Departmental evaluations of prior contractual services with the Department, if any;
The staffing plan and specific expertise of key employees;
The plan for accomplishing the objectives (if applicable, according to the requirements stated in the Professional Service Bulletin);

b) Depending upon the type of project and the method of payment, the following factors may also be important in the selection of a consultant:

The location of the firm's office in which the majority of the work on the project would be done;
The firm's ratio of payroll additives to payroll, as approved in the Department's notice of prequalification.

c) The Consultant Services Unit shall prepare a list for the Selection Committee to show the ranking of each firm and the additional information described above. Such list shall also indicate those firms that are determined to be minority business enterprises pursuant to any applicable Federal Highway Administration (FHWA) definition. If any other federal or State definition would take precedence over the FHWA definition, then such list shall indicate those firms that are determined to be minority business enterprises pursuant to such other definition.

d) The Consultant Selection Committee shall determine appropriate projects, which by their nature and the corresponding qualifications of the proposing minority-owned firms, are suitable for implementing any applicable affirmative action program. On such projects minority ownership may be considered in conjunction with the other factors outlined above in the selection process.

e) Ranking will be made based upon unanimous agreement of the reviewers. Any irreconcilable differences among the reviewers shall be noted when the reviewers submit their materials to the Selection Committee.

f) All information developed or provided under Section 625.80 shall be advisory only and shall have no binding effect upon the Selection Committee. The Department will, unless otherwise required by law, maintain and treat all such information as confidential and as for use only by the Department or another governmental agency entitled by law or by agreement to use such information.

44 Ill. Adm. Code 625.90 Consultant Selection Committee

a) Chairperson

The Deputy Secretary of Transportation, or his/her designee, shall serve as member and chairperson of a seven-member Consultant Selection Committee ("Selection Committee" or "Committee").

b) Department Members

Three of the remaining six members of the Committee shall be from the Department. Specifically, they shall be:

A) the Director of the requesting Division or Office, or his/her designee;

B) the Regional Engineer (or his/her designee) or the Bureau Chief (or his/her designee) from the same Division or Office, as designated by the Director;

C) the Director of the Office of Planning and Programming, or his/her designee.

In the event that the Office requesting the services is the Office of Planning and Programming, the Committee shall meet and operate as normal except that, for purposes of the affected services the Director of Planning and Programming shall have only one vote and the Committee shall have only six members and six votes.

c) Public Members

The other three members of the Committee shall be from the public and shall have professional experience in transportation or engineering. One shall be appointed by the Secretary of Transportation and the other two by the Illinois Society of Professional Engineers (ISPE). Each public member shall be appointed for a term of two years. If a public member does not complete the term, another member shall be appointed by the Secretary or the ISPE (in accordance with the original appointment) to serve the remainder of the uncompleted term. Public members may not be employed by, associated with or have an ownership interest in any firm holding or seeking to hold a contract with the Department while serving as a public member of the Committee.

d) It is the goal of the Department that the membership of the Committee reflect the ethnic and cultural diversity of the population of Illinois. In furtherance of this goal, the Department has a goal that two or more members of the Committee be females or minorities. Additionally, the Department has a goal that the Committee's membership reflect the geographic diversity of the population of Illinois.

e) Committee Secretary

The Chief of the Consultant Services Unit shall serve as Secretary of the Committee but shall not have the power to vote.

f) Meetings; Quorum

The Selection Committee shall meet when called by its Chairperson. In order to conduct business the Selection Committee must have a quorum. A quorum shall consist of at least four members, at least one of whom must be a public member.

g) Participation of Other Governmental Bodies

Where another governmental body or bodies is or are contributing to the funding of a particular contract, the Department may, in its discretion, take either of the following two actions:

Permit the governmental body or bodies to provide one or more representatives who will serve as a member or members of the Selection Committee with a total of one vote (or a fractional vote, as may be prescribed by the Department). In some instances, this option may result in a total Selection Committee membership of more than seven and a total number of votes in excess of seven, with respect to the affected services.
Select a number of consultants (normally 3) in the normal manner, except the selection shall be in no order of preference; the Department may then permit the governmental body or bodies to select one consultant from that group selected by the Selection Committee.

History

Source: Amended at 33 Ill. Reg. 15878, effective October 30, 2009

44 Ill. Adm. Code 625.100 Selection

a) Voice Vote

The Selection Committee shall review the rankings for the firms, as well as any of the additional information described in Section 625.80, and, by voice vote, reduce the number of firms under consideration to three (or fewer where fewer than three firms have submitted acceptable Statements of Interest).

b) Written Ballot

First, second, and third choices shall then be determined by a plurality vote of those Committee members in attendance; this second round of voting shall be by written ballot cast in such a manner that Committee members cannot observe other choices until after all ballots are cast. In determining these choices, the Committee shall give due consideration to the rankings provided by the reviewers.

c) Policy Against Multiple Awards

Selection of a single consultant as first choice for more than one contract shall not be made in a single session unless such selection is determined to be necessary and the reasons therefor are recorded in the Committee's records and a majority of those members present votes by written ballot to approve such reasons. For purposes of this Part, "single session" shall mean and include one or more meetings necessary for the Selection Committee to make all selections which are to be made from a single Professional Service Bulletin.

d) Identity of Firms

The identity of the second and third choice firms referred to in this Section shall, unless otherwise required by law, be maintained and treated by the Department as confidential and as for use only by the Department or another governmental agency entitled by law or by agreement to such information. Provided, however, that if negotiations fail with the first choice firm, the identity of the second choice firm shall then be considered public information. Similarly, the identity of the third choice firm, if negotiations fail with the second choice firm, shall then be considered public information.

44 Ill. Adm. Code 625.110 Notification of Selections

The Consultant Services Unit shall contact each first-choice firm that is selected by the Committee to inform it of its status and the ensuing negotiations. The name of the first-choice firm shall also be published in the next issue of the Professional Service Bulletin and the regular Service Bulletin.

44 Ill. Adm. Code 625.120 Negotiations

The Director of the requesting Division or Office or his designee shall conduct negotiations with the firm selected as first of the three choices. If negotiations cannot be successfully concluded as evidenced by an executed contract with that firm, they shall be formally terminated. Negotiations shall then be initiated with the firm ranking second and if necessary, the firm ranking third, in that order or if no firm's proposal is determined to be suitable, the project will, if let on a contractual basis, be readvertised.

44 Ill. Adm. Code 625.130 Waivers, Modifications

Any portion or all of this Part may be waived or modified by the Secretary of Transportation where such waiver or modification is consistent with good governmental procurement practices and is in the best interests of the State. Requests for such a waiver or modification shall be submitted by the appropriate Director and shall be accompanied by a written statement setting forth the basis and need justifying the requested action.

44 Ill. Adm. Code 625.140 Complaint Procedure

A complaint regarding any decision rendered by or action taken by any Division or Office of the Department pursuant to this Part may be filed with the Secretary of Transportation by submitting a written statement setting forth all the facts and circumstances together with the basis for making such complaint and specifically how such decision or action is alleged to be in contravention of this Part. Upon receipt of a complaint, the Secretary will determine whether, in the decision or action complained of, the Division or Office has acted in accordance with this Part and advise the person submitting the written statement as to this determination as to what additional action, if any, the Department will take. Provided, however, that any such complaint must be filed within 14 days from the time the person complaining becomes aware of the decision or action complained of or from the time information of such decision or action becomes generally available to the public, whichever occurs first.

Part 650 Prequalification of Contractors, Authorization to Bid, and Subcontractor Registration

44 Ill. Adm. Code 650.10 Purpose

a) The purpose of this Part is to establish policies and procedures to allow the Illinois Department of Transportation (the Department), in cooperation with the Chief Procurement Officer for the Department, to fulfill its obligations to award all construction and maintenance contracts to the lowest responsive and responsible bidder by prequalifying contractors to determine their responsibility.

b) A prequalification rating grants neither a license to do business nor a right to bid on or to be awarded a Department contract. It is a preliminary determination of the responsibility of a bidder, who is otherwise in compliance with 44 Ill. Adm. Code 6, to do the work of a construction or maintenance contract advertised by the Department. Contractors prequalified by this Part may also be used by units of local government on contracts approved for letting and award by the Department.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.20 Definitions

"Affidavit of Availability" – A sworn affidavit indicating all work under contract, pending awards, all subcontracts and value of subcontracts.

"Affiliate" – A member of a group of two or more companies related to one another through common ownership, common management, common control or the power to exercise common control. Two corporations are affiliated when one owns less than a majority of the voting stock of the other, or when both are subsidiaries of a third corporation.

"Applicant" – Any prospective contractor who has applied for prequalification in compliance with the procedures delineated in this Part. "Applicant" may be used interchangeably with "Contractor" throughout this Part.

"Application for Prequalification" – A package of forms titled "Application for Prequalification, Statement of Experience, Equipment and Financial Condition" (Form BC-8) required to be submitted by an applicant in support of its request for a determination of responsibility and a prequalification rating.

"Authorization to Bid" – The permission given to a contractor to submit a bid on a given Department letting item and the permission to have that bid made public.

"Available Bidding Capacity" − The applicable available work ratings and the available financial rating.

"Available Financial Rating" – Financial rating as indicated on the Certificate of Eligibility less the total value of all uncompleted work to be done with the applicant's own forces and work subcontracted to others.

"Available Work Rating" – The work rating in a particular category as indicated on the Certificate of Eligibility less all similar uncompleted work to be done with the applicant's own forces (for a listing of available work categories, see Appendix A of this Part).

"Certificate of Appraiser" – The certification by an appraiser that the appraisal is performed with no direct or indirect interest, financial or otherwise, in the business of the applicant.

"Certificate of Eligibility" – A certificate issued to the applicant by the Department indicating the applicant's financial rating, work ratings and the effective period of prequalification.

"Code" – The Illinois Procurement Code [30 ILCS 500].

"Combining Financial Statement" – A comprehensive financial statement that presents the assets, liabilities, net worth, and operating figures of two or more affiliated companies. The statement presents each affiliate's financial data in separate, adjacent columns and a total column for the combined affiliate data.

"Consolidated Financial Statement" – A financial statement that presents the assets, liabilities, and operating accounts of a parent company and its subsidiaries.

"Contract" – The written agreement between the Department and the contractor setting forth the obligations of the parties thereunder, including, but not limited to, the performance of the work, the furnishing of labor and materials, and the basis of payment. The contract consists of the invitation for bids, the proposal, the letter of award, the contract form and contract bond, any specifications and supplemental specifications, any special provisions, any general and detailed plans, and all agreements that are required to complete the construction of the work, including contract time, all of which constitute one instrument.

"Contractor" – The individual, partnership, corporation or other business entity recognized by law contracting with the Department for performance of prescribed work. An applicant which has been issued a Certificate of Eligibility. "Contractor" may be used interchangeably with "Applicant" throughout this Part.

"Department" – The Illinois Department of Transportation.

"Department of Human Rights Identification Number" – A number assigned to an applicant who has prequalified with the Department of Human Rights.

"Director" – The Director of the Division of Highways or the Director's designee.

"Eligible" – Satisfying the appropriate conditions as set forth in the contract solicitation documents.

"Engineer of Construction" – The individual responsible for directing the development of the Department's highway construction policies that assure uniform practices, interpretation and applications in Illinois.

"Financial Rating" – The measured ability of an applicant to sustain adequate cash flow for the duration of an awarded contract based on the submitted application for prequalification.

"Financial Statement" – A presentation of financial data, including accompanying notes, derived from accounting records that are intended to show an applicant's economic resources and obligations at a point in time or the changes therein for a period of time in conformity with a comprehensive basis of accounting.

"Joint Venture" – Two or three contractors combining their available financial and work ratings for the purpose of bidding a construction project.

"Letter of Subordination" – A signed statement from a stockholder, officer, director, employee, parent, subsidiary or affiliate agreeing not to withdraw a specific amount of money loaned to the applicant during the period of prequalification.

"Net Worth" – Total assets minus total liabilities.

"Parent" – A corporation that owns or controls subsidiary companies through the ownership of voting stock. A parent corporation is usually an operating company in its own right. Where the parent has no business of its own, the term "holding company" may apply.

"Prequalification" – The rating process established by the Department required of all prospective bidders, unless waived, prior to being considered for Authorization to Bid, as well as being considered for contracts to be awarded by local agencies requiring approval of award by the Department. Once prequalified, an applicant is issued a Certificate of Eligibility.

"Prequalification Section" – The section within the Bureau of Construction of the Department responsible for determining responsibility, financial ratings, work ratings, and the issuance of bidding proposals.

"Request for Authorization to Bid or Not for Bid Status" – A form, BDE 124, provided by the Department to assist a contractor in making a formal request for Authorization to Bid on the requested items.

"Responsibility" – The capability in all respects to perform fully the requirements of an awarded contract, and the integrity and reliability that will assure good faith performance.

"Special Letting" – A letting that is not listed on the Department's annual letting schedule as posted on the Transportation Procurement Bulletin.

"Specialty Items" – Items that are designated in the contract documents that are considered to require specialized construction techniques that are not ordinarily available in contracting organizations qualified to bid.

"Standard Specifications" – A Department publication entitled Standard Specifications for Road and Bridge Construction that sets forth the contract provisions for road and bridge construction.

"Subsidiary" – A corporation having more than 50% of the voting stock owned by another corporation called the "parent".

"Transportation Procurement Bulletin" – The public document that is the official publication and invitation issued by the Department for bids on construction projects.

"Working Capital" – Current assets less applied discounts and current liabilities.

"Work Rating" – The dollar value of work of a particular category of construction that an applicant can perform with his/her organization and equipment in one construction season.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.30 Introduction to Prequalification

a) As required by Subpart B, each contractor shall be prequalified, or deemed eligible, prior to being granted Authorization to Bid on contracts advertised by the Department.

b) Except as otherwise provided in Section 650.70, in order to become prequalified, an applicant shall submit an application for prequalification using forms furnished by the Department.

c) Upon receipt of a completed application, the Prequalification Section evaluates the information, determines the responsibility of the applicant and calculates a prequalification rating for the applicant.

d) The prequalification rating is a combination of two subratings: the financial rating and the work rating. The policies and procedures used by the Prequalification Section to determine these two subratings are delineated in this Subpart.

e) After the Prequalification Section determines the applicant to be responsible and calculates the applicant's prequalification ratings, the applicant will be issued a Certificate of Eligibility. Once prequalified, a contractor may be considered for Authorization to Bid on contracts within the contractor's available bidding capacity in accordance with Subpart B.

f) Pursuant to the Code, an applicant must also be prequalified or submit evidence of application with the Illinois Department of Human Rights (IDHR) prior to obtaining Authorization to Bid on contracts which are subject to the competitive bidding requirements of the Code. Information and forms concerning the rules of IDHR may be obtained from the following website: http://www.illinois.

gov/dhr/publiccontracts/Pages/default.aspx.

g) Pursuant to Section 13.05 of the Business Corporation Act of 1983 [805 ILCS 5/13.05], out-of-state contractors are required to secure a certificate from the Illinois Secretary of State authorizing them to do business in Illinois. All contractors are required to be authorized to transact business or conduct affairs in Illinois prior to submission of a bid [30 ILCS 500/20-43]. In addition, out-of-state prequalified contractors are required to staff and maintain an office located within the geographic boundaries of the State of Illinois. The in-state office will be the primary office at which all business with the Department will be conducted. The certificate must be obtained prior to the execution of a contract. Application forms can be obtained from the following website: http://www.

cyberdriveillinois.com/departments/business_services/home.html.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.40 Application Requirements

a) The application for prequalification is available on the Department's website at http://www.idot.illinois.gov/doingbusiness/procurements/constructionservices/

index or by writing or calling:

Illinois Department of Transportation

Bureau of Construction, Prequalification Section

2300 South Dirksen Parkway, Room 322

Springfield, Illinois 62764

217/782-3413

b) An application for prequalification shall be complete and submitted on the form furnished by the Department and in accordance with this Part.

c) An application for prequalification shall consist of the following information:

The applicant's name, address, telephone number and telefax number;
The applicant's Federal Employer's Identification Number (F.E.I.N.) or social security number if the applicant does not have a F.E.I.N.;
The applicant's Illinois Department of Human Rights Identification Number and registration expiration date;
The applicant's completed Statement of Experience and Financial Condition;
All other information required by this Part or requested by the Prequalification Section.

d) Submission of a completed application before the cut-off dates is the sole responsibility of the applicant. Cut-off dates are established based on the date of the letting and whether the applicant is a first-time applicant or an applicant seeking to renew its prequalification ratings (see Section 650.50(a) and (b) for additional information). A schedule of cut-off dates is available at http://www.idot.illinois.gov/doingbusiness/procurements/construction

services/constructionbulletins/transportationbulletin/index.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.50 Time for Submission

a) An applicant seeking to be prequalified with the Department for the first time must submit a complete application for prequalification no later than 4:30 p.m. prevailing time no later than 21 days prior to the scheduled date of the letting for which the applicant desires to bid. If the day of receipt falls on a weekend or a holiday, the following work day will determine the cut-off. The Department gives public notice of the letting dates and cut-off dates in the Transportation Bulletin. The Prequalification Section will make its determination prior to the relevant letting date.

b) An applicant seeking to renew its prequalification ratings with the Department must submit a complete renewal application prior to the expiration of the applicant's existing prequalification ratings (see Section 650.100 for additional information).

c) An applicant seeking to revise its current prequalification ratings with the Department must submit revisions no later than 4:30 p.m. prevailing time no later than 21 days prior to the scheduled date of the letting for which the applicant desires to bid. The Prequalification Section will make its ratings determination prior to the relevant letting date.

d) If additional projects are advertised for a letting or special letting through the issuance of a supplemental bulletin, the day of receipt for application forms or additional information is seven days after the date of issuance of the supplemental bulletin to submit bids on those projects advertised in the supplemental bulletin.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.60 Public Disclosure of Contractor Information

The Department will, to the extent permitted by law, maintain and treat all of the contractor's information as confidential and for use only by the Department or other governmental agencies entitled by law or by agreement to use such information.

44 Ill. Adm. Code 650.70 Waiver of Prequalification and Additional Responsibility Considerations

Prequalification may be waived or additional responsibility or eligibility factors may be established for selected contracts advertised in the Transportation Procurement Bulletin. In such contracts, the manner of determining bidder responsibility will be stated in the advertised contract and Transportation Procurement Bulletin. Contracts in which such waiver may be made include, but are not limited to, contracts that require specialized skills not covered by available work categories, contracts for furnished manufactured products, small business set-asides, or contracts in which a waiver is necessary to achieve sufficient competition. However, contractors must still obtain an Illinois Department of Human Rights identification number and comply with the procedures of Subpart B.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.80 Issuance and Effect of Ratings

a) Once the Prequalification Section has completed its analysis of all information relevant to the determination of ratings and has established the ratings of the applicant, a Certificate of Eligibility will be issued to the applicant. A copy of the Certificate of Eligibility will be provided to requesting units of local government.

b) Prequalification permits the prequalified contractor to make application for Authorization to Bid on contracts in accordance with the procedures of Subpart B. The Certificate of Eligibility may be used by units of local government as evidence of contractor eligibility to bid on contracts advertised and awarded by the units of local government with approval by the Department as required by law.

c) The Certificate of Eligibility and the ratings therein confer neither a license nor a right to bid on or to be awarded a contract. Prequalification is an initial, preliminary determination of responsibility which must be finally determined at the time of award and execution of a contract advertised by the Department or at the time of approval in the case of contracts subject to Department approval by law.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.90 Effective Date of Ratings

The effective date of a firm's prequalification shall be the date on which the ratings are determined and approved unless, for a new applicant, the application or additional information is received during the prequalification cut-off period (see Section 650.50(a)) in advance of a letting. For a renewal applicant, the effective date of prequalification shall be the date on which the ratings are determined and approved unless the application or additional information is received after the authorization to bid cut-off date (see Section 650.330(b)) in advance of a letting. In these instances, the effective date shall be the day following the letting or the date on which the ratings are determined and approved, whichever is later.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.100 Expiration Date of Ratings

All prequalification ratings issued by the Department will expire sixteen months from the date of the financial statement (balance sheet). The expiration date of current ratings will be shown on the Certificate of Eligibility issued to the contractor. Four months prior to the expiration date of the Certificate of Eligibility, the Department will mail a renewal notice to the prequalified contractor stating that all required forms can be acquired at www.dot.il.gov if it intends to submit a renewal application in accordance with Section 650.50 of this Part.

History

Source: Amended at 30 Ill. Reg. 16373, effective October 10, 2006

44 Ill. Adm. Code 650.110 Denial or Revocation of Ratings

a) Prequalification ratings will be denied, or previously issued ratings will be revoked, in the event the Department finds the applicant or contractor to be nonresponsible. Reasons or events for a finding of nonresponsibility include but are not limited to the following. The Department shall be notified by the applicant or prequalified contractor of any information known to them which is relevant to any of the following reasons:

the applicant failed to provide complete information regarding each item and schedule set forth in the application for prequalification or otherwise requested by the Department;
the applicant provided false information regarding the application;
the applicant is suspended pursuant to Sections 20-75 and 50-65 of the Illinois Procurement Code [30 ILCS 500/20-75 and 50-65] by the Department or another State agency;
the applicant is suspended or debarred by the United States through a federal agency;
the applicant is suspended by the Department of Labor pursuant to Section 11a of the Prevailing Wage Act [820 ILCS 130/11a];
the applicant is suspended or debarred because of bid rigging or bid rotating convictions pursuant to the provisions of Article 33E of the Criminal Code of 1961 [720 ILCS 5/Art. 33E];
the applicant is suspended or debarred pursuant to the provisions of the Illinois Procurement Code [30 ILCS 500];
the applicant is suspended or debarred pursuant to the operation of Section 6 of the Drug Free Workplace Act [30 ILCS 580/6];
the applicant is an individual and debarred by operation of the Educational Loan Default Act [5 ILCS 385];
the applicant is suspended or debarred by operation of Section 25 of the Procurement of Domestic Products Act [30 ILCS 517/25];
the applicant is not eligible pursuant to, or has failed to comply with, the requirements of this Part;
the applicant has filed for protection from creditors pursuant to the bankruptcy laws of the United States;
the applicant's performance evaluation is at or below the levels provided in Section 650.240(e) and (f) of this Part;
the applicant has failed to execute a contract after award, has been declared in default or has otherwise substantially breached its obligations on any contract or contracts awarded or approved for award by the Department; or
the applicant has been convicted for the violation of any State or federal law having relevance to the integrity and reliability of the applicant.

b) If an application is denied or prequalification is revoked by the Department, the applicant shall be sent a notice of denial or revocation in lieu of a Certificate of Eligibility setting forth the reason or reasons for denial or revocation.

c) A denial or revocation will apply to the applicant or contractor named therein and to any parent, subsidiaries, affiliates or later created, established, formed or reorganized companies, firms or entities having substantially the same ownership, beneficiaries, management or control as the denied or revoked applicant or contractor. Application of the scope of a denial or revocation will be construed broadly by the Department for the express purpose of preventing the circumvention of the decisions of the Department by the means of creating new applicants for prequalification.

History

Source: Amended at 30 Ill. Reg. 16373, effective October 10, 2006

44 Ill. Adm. Code 650.120 Extension of Ratings

a) A temporary extension of prequalification ratings due for expiration may be granted by the Department for good cause which may include, but is not limited to, the following examples:

The contractor has changed the fiscal year end of the company.
The contractor has changed the certified public accountant who will perform the audit after the audit has started.
The contractor has been granted an extension for filing taxes by the Internal Revenue Service.
The contractor's records have been destroyed by fire, wind, water, or such other similar event beyond the contractor's control.
The contractor's certified public accountant requests an extension of time because of a heavy workload of tax returns.
The contractor's certified public accountant is unable to complete the audit due to his/her illness.
The certified public accountant is unable to complete the audit due to illness of the sole owner, stockholder, officer or director of the company being audited.
The contractor has a minor organizational change involving ownership, officers or directors without financial impact. An extension will not be granted due to organizational changes involving an acquisition by the contractor.
The contractor changes from individual to corporate status.
The contractor changes from partnership to corporate status.

b) A request for an extension must be received by the Department in writing no later than 4:30 p.m. prevailing time on the day of expiration of the prequalification ratings. If this day falls on a holiday or weekend, then the following work day will determine the cut-off. The exception for accepting receipt of an extension request is the 21 day prequalification period in advance of a letting established in Section 650.50 of this Part. Extensions will not be granted if the request for extension is received during the 21 day prequalification cut-off period in advance of a letting and the prequalification ratings expire prior to that letting.

c) Extensions will be given in 30 day increments with the maximum extension being 90 days.

d) Requests for a 30, 60 or 90 day extension shall include:

A letter from the certified public accountant detailing the reason for the request.
Submittal of an adjusted trial balance sheet as of the audit date. This shall be provided by the certified public accountant for 60 and 90 day extension requests only.

e) Extensions of 60 or 90 days will not be granted if the adjusted trial balance sheet shows more than a 20 percent reduction in the contractor's financial rating.

f) Extensions of 30, 60 or 90 days will not be granted if such extensions have been granted for two consecutive prior ratings before the current request.

g) Extensions will not be granted to contractors who are prequalified in an unaudited status or contractors who are changing from an audited status to an unaudited status.

History

Source: Amended at 32 Ill. Reg. 7989, effective May 8, 2008

44 Ill. Adm. Code 650.130 Revisions to Prequalification Ratings

a) Revision to the financial rating that will either increase or reduce the rating may be necessary during the period it is in effect if there has been a change in status of the contractor due to reasons or events that materially impact the financial rating calculation or that affect the current responsibility of the contractor, including but not limited to those listed in this subsection (a). The Department may require a contractor to file a new financial statement at any time it considers such action to be warranted. The statement shall be filed within 30 days after such request. The prequalification of a contractor who fails to file the requested information will be revoked pursuant to Section 650.110 of this Part. The Department shall be notified by the contractor when it has knowledge of any of the following reasons or events:

The contractor experiences a change involving ownership.
The contractor acquires or is acquired by another company.
The contractor incurs equipment or plant expenditures through purchase, lease or rental which totals 5 percent or more of the calculated value of the financial rating for a period of one year after the date of the financial statement. Notification of an equipment or a plant purchase should include the following:

A) Description (i.e., make, model, year, serial number and size or capacity);

B) Purchase date;

C) Purchase price;

D) Book or appraised value; and

E) Financial transaction (i.e., cash purchase or how financed).

Reduction of any long term notes before their due date.
The contractor incurs unanticipated stock repurchases within the period of one year after the date of the financial statement.
Contingent liabilities which are paid within one year of the financial statement.
Payment of the cash surrender value of life insurance.
The contractor incurs a judgment against it due to a lawsuit.
The contractor defaults on a loan agreement which is encumbered or pledged by current or fixed assets of the firm.
The contractor defaults on a contract not awarded or approved for award by the Department.
The contractor has experienced an event which has a present or future financial impact or reduction in working capital during the prequalification period. Subsequent events which represent a present or possible future reduction in working capital during the prequalification period will be reviewed and the Department will issue new ratings if the reduction in working capital exceeds 30 percent. The Department may request verification from the CPA when applicable.
The contractor has Department awarded or approved contract work in progress that has fallen behind the approved progress schedules applicable to the contracts involved due to performance delays caused by the contractor.
The contractor has not commenced performance of Department awarded or approved contract work as required by the contract or contracts involved due to performance delays caused by the contractor.

b) Revision to a work rating that will either increase or reduce the rating may be necessary during the period it is in effect for events or reasons that affect the current responsibility of the contractor to undertake and complete the work category, including but not limited to those listed in this subsection (b). The Department may require the contractor to provide additional information or verification of information affecting a work rating at any time it considers such actions to be warranted. Failure to provide requested information will result in revocation pursuant to Section 650.110 of this Part. The Department shall be notified if any of the following occur:

A change in management or departure of key staff required to maintain the work rating.
Sale, loss, destruction, damage, obsolescing or other action affecting the availability of equipment required to maintain the work rating.
Cancellation of an equipment lease or rental required to maintain the work rating.
The contractor's performance evaluation is at or below the levels provided in Section 650.240(e) and (f) of this Part.
The contractor has Department awarded or approved contract work in progress that has fallen behind the approved progress schedules applicable to the contracts involved due to performance delays caused by the contractor.
The contractor has not commenced performance of Department awarded or approved contract work as required by the contract or contracts involved due to performance delays caused by the contractor.

c) No revision of a prequalification rating requested by a contractor will be effective for a particular letting unless a revised application for prequalification or other supplemental information pertaining to changes is received within the time specified by Section 650.50 of this Part.

d) Revision of a prequalification rating initiated by the Department shall be effective when issued.

e) A revision involving the name, phone number or address of a contractor will not affect prequalification ratings. However, the Department should be notified of these changes as soon as they occur.

History

Source: Amended at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.140 Transfer of Prequalification Ratings

Prequalification ratings shall not be assigned or transferred by the contractor.

History

Source: Amended at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.150 Reconsideration and Appeal

a) If an applicant is denied ratings, a contractor has its ratings revoked, a contractor has its ratings revised, or an applicant is issued incorrect ratings on a Certificate of Eligibility, the applicant or contractor may request reconsideration by notifying the Prequalification Section by filing a written Request for Reconsideration within thirty days of the issue date on the face of the Certificate or of the date on the notification of denial or revocation.

b) A Request for Reconsideration shall clearly state the basis of the request and be supported by information of the type required by this Part which would indicate that the ratings should be amended or that the action of the Prequalification Section should be modified or reversed.

c) The Engineer of Construction will review the Request for Reconsideration and the applicant or contractor shall provide any additional requested information for purposes of the review. The review will be completed within 14 days after receipt unless the Engineer extends the time for review in order to provide for a full and complete review. Upon completion of the review, the Engineer of Construction shall notify the applicant of the results and provide the applicant or contractor with an amended Certificate of Eligibility or written confirmation of the previous determination or action including an explanation of the reasons for the confirmation.

d) If the applicant or contractor remains unsatisfied with the results of the Engineer of Construction review, the applicant or contractor may file a written appeal to the Director within fourteen days of the date of the Engineer of Construction final action.

e) The appeal shall state with specificity the basis of the appeal and the reasons why the decision of the Engineer of Construction is incorrect. No new issues may be raised. The appeal shall further state whether the applicant or contractor requests an opportunity to make a verbal presentation to the Director.

f) The Director will review all information submitted with the appeal and will consider the verbal presentation of the applicant or contractor. The appeals will be completed within 14 days after receipt unless the Director extends the time in order to provide for a full and complete review. The Director will notify the applicant or contractor of his decision in writing and shall include an explanation of the reasons for the decision. The decision of the Director shall be final.

44 Ill. Adm. Code 650.160 Financial Rating - General

a) The financial rating serves two functions:

To measure the applicant's ability to sustain cash flow for the duration of an awarded contract and
To indicate the maximum amount of uncompleted work that the applicant may have under contract at any one time.

b) When computing an applicant's financial rating, the Department utilizes the financial statement submitted by the applicant as part of the application for prequalification.

History

Source: Amended at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.170 Financial Statement

An applicant may obtain a financial rating in either an audited or unaudited status. Audited financial information provides the Prequalification Section with reliable information, whereas unaudited financial information is subject to certain restrictions as provided for in subsection (c) of this Section.

a) Audited Status

The Department will require all applicants seeking an audited status to adhere to the following:

An applicant shall submit the Department's "Certificate of Accountant" with the completed financial statement. An Independent Auditor's Opinion Letter is acceptable in lieu of the Certificate of Accountant, if the applicant desires to submit only the balance sheet, auditor's notes, and an income statement.
All data shall be secured from an audit conducted no more than 12 months prior to the time the financial statement is received by the Department.
Financial statements which are only compiled or reviewed by a CPA are not accepted for prequalification in an audited status.
The audit of the applicant's records shall be conducted in accordance with generally accepted accounting standards.
The financial statement shall be prepared by a Certified Public Accountant (CPA) who has been licensed by the Illinois Department of Financial and Professional Regulation or an out-of-state CPA who has been issued a license by that state. A financial statement will be considered unaudited if prepared by a non-licensed CPA.
No certified financial statement will be accepted that has been prepared by an accountant who has a direct or indirect interest, financial or otherwise, in the business of the applicant submitting the statement.
The applicant shall submit a report prepared by the CPA who conducted the audit if the Department's Certificate of Accountant is not submitted. The report shall contain the following information:

A) name, address, and telephone number of the accounting firm involved with the audit;

B) the license number, state of license, expiration date of license and signature of the CPA conducting the audit;

C) the date of audit;

D) the degree of responsibility assumed by the CPA; and

E) the accountant's opinion (see subsection (b) of this Section).

b) Opinion of Certified Public Accountant

An auditor's or CPA's opinion is a report that either contains an expression of opinion regarding the financial statements, taken as a whole, or an assertion to the effect that an overall opinion cannot be expressed. When the latter occurs, the CPA should state the reasons. There are several types of opinions a CPA can issue:

Unqualified opinion − an opinion which contains no exceptions and conveys the CPA's belief that the financial statement presents a fair and accurate statement of the applicant's financial position. An unqualified opinion is the most desirable because it allows the applicant to obtain audited status. Additionally, the unqualified opinion enables the Department to accept the applicant's financial statement with the confidence that the audit was conducted in accordance with generally accepted auditing standards; that the CPA acquired all the information necessary to render an informed opinion; and, that the same accounting principles were used as those used in the preceding year.
Qualified opinion − an opinion which contains an exception. An exception indicates that the CPA is not in agreement with a certain accounting principle. When a qualified opinion is in order, the CPA shall express the reasons for the qualification, the approximate amount involved, and the overall effect on the financial statement. Depending on the impact of these three factors, the Department may or may not accept the opinion for prequalification purposes. If the Department chooses not to accept the opinion, the applicant's financial statement will preclude prequalification in an audited status.
Adverse opinion − an opinion expressing the CPA's belief that the applicant's financial statement does not present a fair and accurate statement of the applicant's financial position. Pursuant to the rendering of an adverse opinion, the CPA shall disclose all substantive reasons for issuing such an opinion in his report. The Department shall view the applicant's financial statement as unaudited, thereby precluding prequalification in an audited status.
Disclaimer of opinion − a report used when a CPA believes an opinion cannot be expressed. Pursuant to the rendering of a disclaimer, the CPA shall present the reasons for refusing to express an opinion, such as client imposed restrictions. The Department shall view the applicant's financial statement as precluding prequalification in an audited status.

c) Unaudited Status

The Department will require all applicants seeking an unaudited status to adhere to the following:

The financial rating in the unaudited status is determined subject to the following limitations:

A) the applicant's financial rating shall be limited to no more than $750,000 when a balance sheet is prepared and submitted by the applicant; or

B) the applicant's financial rating shall be limited to no more than $1,500,000 when a reviewed or compiled financial statement including an opinion letter, balance sheet, accountant's notes to financial statement, and income statement is prepared by an accountant and submitted by the applicant.

The financial statement shall be prepared by either the applicant or an accountant. It is not necessary that the statement be prepared and certified by a licensed accountant. The financial statement:

A) must be prepared from data secured from the applicant's records;

B) must not be more than 12 months old at the time of receipt by the Department;

C) must be completed and in balance; and

D) the financial information release must be completed and submitted by the applicant's financial institution to verify account balances.

d) Interest in Other Firms

Any parent and all affiliates or subsidiaries of the applicant shall be identified.
If an individual, a member of a partnership, or an officer or director of a corporation is interested financially in more than one company, the accountant shall submit a letter explaining such interest, the extent of the investment, and the individual's relationship with such companies. The Department may require these individuals to furnish financial statements from these companies as of the same date as the financial statement submitted by the applicant requesting prequalification.
Each applicant shall disclose, in the application for prequalification, the name of each owner, shareholder, partner, member, beneficiary or any other person expected to have a direct pecuniary interest in a contract awarded by the Department who holds an elective office in the State of Illinois; who is appointed to or employed in any office or agency of State government; or who is the spouse or minor child of any such person. If the company is a corporation, the name of all the officers and directors and their respective positions shall be disclosed.

History

Source: Amended at 36 Ill. Reg. 1775, effective January 19, 2012

44 Ill. Adm. Code 650.180 Balance Sheet Schedules

In order to provide for the determination of ratings in as objective a manner as possible, the Department has established specific evaluations and classifications for a number of financial rating items. The value attached to the affected financial rating items shall be calculated by decreasing its face value by the discount established in this Part for that item. Where a valuation or classification materially affects an applicant's financial rating, and insufficient information has been submitted, the Department may ask for clarification or substantiation of a classification made by the accountant in preparing the statement. If schedules in the format established in the "Contractor's Statement of Experience and Financial Condition" are not completed, the maximum discounts will be applied. The various financial rating items and their corresponding discounts are delineated as follows:

a) Current Assets

Schedule A – Cash

Cash includes currency, personal checks, bank drafts, money orders, cashiers checks and money on deposit with banks. The Department classifies cash as a current asset and attaches no discount, provided:

A) Deposits made for a sole proprietorship are held in the name of either the proprietor solely, or jointly with the proprietor's spouse.

B) Deposits made for a partnership are held either in the name of any of the general partners, or in the name of the partnership.

C) Deposits made for a corporation are held in the name of the corporation only.

D) Deposits are free of debt or obligation. Certificates of deposits and other cash assets that are pledged will be discounted by the amount of debt or obligation.

E) For a firm in an unaudited status, a financial release must be submitted by the firm's bank to verify balances as of the balance sheet date.

Schedule B – Notes Receivable

Notes receivable will be evaluated and classified as follows:

Discount

Secured notes receivable due within one year

Unsecured notes receivable

100%

Any note receivable, or portion thereof, which will not be due and payable or is not expected to be collected within one year from the statement date

100%

Notes receivable from stockholders, officers, directors, employees, parent, subsidiaries and affiliates

100%

Schedule C – Certified and Cashier's Checks on Deposit

Deposits which may be included are those which are expected to be refunded within the current period or upon request of the depositor. An example is a deposit for a proposal guarantee. Purchase deposits on real estate and equipment will be included in determining the value of those fixed assets. All other deposits will be discounted 100 percent.

Schedule D – Accounts Receivable – Contracts

Accounts receivable from federal and State agencies for all contracts, and from local agencies for transportation contracts are considered as current assets regardless of the contract completion date. If the applicant has completed work not covered by current pay estimates and an item for such work is shown, the accountant shall obtain evidence in writing from the parties for whom the work was performed to justify such an item. Accounts receivable shall be evaluated as follows:

Discount

From federal and State agency contracts and local agency transportation contracts.

From contractors on federal and State agency contracts and local agency transportation contracts. (Note: The receivables in subsections (a)(4)(A) and (B) must be clearly denoted on Schedule D in order to escape discount.)

From other contracts or entities.

10%

Work completed but unbilled (other entities).

10%

Over one year old (other entities).

100%

Schedule E – Other Accounts Receivable

A) Any other account receivable, such as claims for tax refunds, will be carefully considered to determine whether it constitutes an authentic receivable and is collectible within one year.

B) Other accounts receivable shall be evaluated as follows:

Discount

Accounts receivable offset by accounts payable.

ii)

Income tax refunds.

iii)

Judgements and insurance claims receivable.

100%

iv)

Accounts receivable over one year old.

100%

Accounts receivable from stockholders, officers, directors and employees.

100%

vi)

Accounts receivable from parent, subsidiaries and affiliates. (See the exception to this discount in subsection (a)(5)(B)(vii) of this Section.)

100%

vii)

Accounts receivable from prequalified parent subsidiaries and affiliates whose financial statement date corresponds to the prequalifying company and whose financial statement of the same date shows a corresponding accounts payable.

C) Total discounts for accounts receivable will be offset by any allowance established for bad debt except in cases that involve 100% discounts.

D) In determining whether the status of a receivable is current, reference will be made to the previous statements submitted by the applicant. The appearance of an item on two or more successive statements indicates that the receivable is not current and perhaps uncollectible. Therefore, the receivable will be considered noncurrent.

Schedule F – Stocks and Bonds

A) In listing stocks, bonds, investments, etc., in Schedule F, the accountant shall show as separate items the applicant's investments in other contracting firms.

B) Stocks, bonds and other investments are evaluated and classified as follows:

Discount

Municipal, State and U.S. Bonds (cash surrender value)

ii)

U.S. Treasury Bills (cash surrender value)

iii)

Repurchase agreements

iv)

Annuities and Individual Retirement Accounts

10%

Stocks, bonds and investments, including commercial paper

(book value shown on balance sheet)

(market value shown on balance sheet)

25%

33⅓%

vi)

Special Assessment vouchers – tax anticipation warrants

25%

vii)

Stocks of parent, subsidiaries, affiliates, etc., which are themselves prequalified

100%

viii)

Nonmarketable equities – defined as equities not readily available for public sale

100%

ix)

Stock in civic organizations or social clubs (i.e., country club, co-op stock, etc.)

100%

Artwork and collections

100%

xi)

Investments in joint ventures

25%

xii)

Investments in nonprequalified affiliated companies

25%

xiii)

Deferred tax asset

33⅓%

xiv)

Personal effects (sole proprietor)

100%

Schedule G – Material in Stock

A) Inventories are evaluated and classified as follows:

Discount

Verified value of material in stock for current contracts except sod and growing nursery stock

ii)

Verified value of other material in stock

10%

iii)

Verified book or appraised value of sod and growing nursery stock

50%

B) In completing Schedule G, the accountant shall exclude the value of any material for which a material allowance has been paid.

Schedule H – Cash Surrender Value of Life Insurance

Cash surrender value, not face value, of life insurance is considered a current asset provided the amount of any policy loan is considered as a current liability.

Schedule I – Prepaid Items

All prepaid items will be discounted 100%.

Schedule J – Relation of Billings and Costs

A) This schedule is established for the convenience of those contractors that report income for Federal tax purposes on the cash method (completed contract), but who prepare financial statements on the accrual method (percentage of completion).

B) Where the applicant classifies his billings in excess of costs as a fixed or other liability, the Department shall reclassify it as a current liability.

C) The discount applied to billings and costs by the Department is as follows:

Discount

Costs in excess of billings (current assets)

10%

b) Fixed Assets

Schedule K – Real Estate

A) No consideration is given if title-held land and improvements are not verified by the certified public accountant for audited financial statements.

B) The allowance for real estate is the value of title-held land and improvements less long term encumbrances from commercial lending institutions times a factor of 50 percent.

C) The value may be based on an accredited real estate appraisal which is not more than 24 months old at the time of receipt by the Department. The appraiser's background, experience and references must be submitted. The information on the appraiser is not required if a tax assessment value is provided. The firm must request the use of the appraisal and note any deletions or additions (with corresponding values) since the appraisal date.

D) An applicant shall submit the Department's Certificate of Appraiser.

E) If an appraisal is not submitted or accepted, the allowance will be based on book value.

F) If the net appraised or book value is less than long term encumbrances, no reclassification of excess encumbrance will be made to current liabilities if current year's payments are provided for in current liabilities.

G) No allowances are given for oil leases, leasehold improvements, mineral leases or land lease prepayments.

Equipment

A) In the case of audited financial statements, the accountant shall verify the correctness of the equipment schedule. All equipment which is still serviceable, even though fully depreciated, shall be included and listed by classification such as graders, scrapers, front-end loaders, bulldozers, cranes, etc.

B) The allowance for equipment is the value of owned construction equipment, including purchase deposits and capital leases, less long term encumbrances to commercial lending institutions times a factor of 70 percent. No value will be given for operating leases or rental equipment.

C) The value may be based on an accredited equipment appraisal (physical inspection) that is not more than 24 months old at the time of receipt by the Department. The appraiser's background, experience and references shall be submitted. The firm must request the use of the appraisal and note any deletions or additions (with corresponding values) since the appraisal date.

D) An applicant shall submit the Department's Certificate of Appraiser.

E) An appraisal that includes only the fair market value will be discounted 20% before being included in the calculation of an applicant's financial rating.

F) If an appraisal is not submitted or accepted, the allowance will be based on book value.

G) The accountant may restate any accelerated depreciated value to straight-line depreciation for determining book value.

H) If the net appraised or book value is less than long term encumbrances, no reclassification of excess encumbrance will be made to current liabilities if current year's payments are provided for in current liabilities.

c) Schedule L – Other Current or Fixed Assets

If an applicant lists other assets not described in this Part, they shall be described in sufficient detail to be considered. Allowances for this category include, but are not limited to, the following:

Discount

Nonconstruction equipment (classify to equipment)

Accrued interest and dividends with adequate detail

10%

Grain and livestock (classify to inventory)

25%

Interest and dividends from stockholders, officers, directors, employees, parent, subsidiaries and affiliates

100%

Organization expense/good will

100%

Investment credit

100%

History

Source: Amended at 30 Ill. Reg. 16373, effective October 10, 2006

44 Ill. Adm. Code 650.190 Other Factors Considered in Determining Financial Ratings

a) Notes and Accounts

Long term notes and accounts payable to stockholders, officers, directors, employees, parent, subsidiaries and affiliates will not be considered a liability if subordinated. A subordination is not permitted if it takes place more than one year from the date of the financial statement. Long term notes that are not subordinated will be considered as current liabilities. Subordinations that are not honored will not be considered on subsequent financial statements.
Long term notes (that are in the company's name) payable to banks or other financial institutions when secured by the personal assets of the owners, officers or directors will be considered as additional working capital if properly subordinated. If not subordinated, they will be considered as liabilities against current assets.
Notes payable due within one year from the financial statement date are considered current liabilities. Installments on notes due beyond one year are considered deferred liabilities.
When notes payable are secured by all assets of a firm, the amount of the loan is deducted from the value of fixed assets (against equipment first, then real estate) in determining the financial rating. No excess of encumbrance will be charged against working capital. When notes payable are unsecured, there will be no deductions from the value of fixed assets with the exception of Section 650.180(a)(1)(D).
The reduction of long term notes before their due date will cause a reduction in the computed financial rating. In the event of long term debt reduction, the contractor shall furnish in writing the details of the transaction. This information shall be verified by a certified public accountant for those contractor's who have an audited status.
Any long term unsecured notes payable shall be accompanied by a signed statement from the lending agency and the contractor indicating that a decrease in the unsecured borrowing shall be reported to the Department immediately. In addition, the contractor shall provide a copy of the loan agreement that shall disclose the date of the loan, the termination date, the terms of payment, a statement that the loan is free of conditions and whether it is interest or noninterest bearing. Any unsecured note payable not accompanied by such a statement and loan agreement shall be considered a current liability for prequalification rating purposes.

b) Income Taxes

The Department shall utilize the maximum corporate tax rate as stipulated by the Internal Revenue Code to reclassify deferred taxes as a current liability. This situation occurs when an applicant reports its income to the Internal Revenue Service on the cash or completed contract method, but submits such to the Department on the accrual method, thus deferring 100 percent of any income taxes due on its receivables. When deferred taxes are represented as a long term asset, the asset will be given no credit.

c) Dividends

Where dividends of the applicant, declared or proposed, have neither been paid nor included as a current liability in the submitted application for prequalification, the Department shall establish reserve distributions equal to the unpaid portion.

d) Treasury Stock

If debentures have been issued, or, if long term obligations have been assumed by an applicant for repurchase of treasury stock, the Department will not consider the long term portion of these obligations as long as the applicant has provided for repayment of any current portion.

e) Related Companies

Applicants may be related to other concerns or companies by virtue of a parent, subsidiary or affiliate connection. Also, two or more concerns or companies may operate in a coordinated manner to maintain a single set of ratings. Applicants seeking a prequalification financial rating based upon the financial strength of the applicant and a related company or seeking a financial rating in conjunction with the financial strength of a group of related companies will be evaluated and issued ratings based upon an assessment of the financial statements submitted in accordance with this subsection (e) provided that the operational roles of the related companies in the business activity of the applicant are consistent with the work ratings applied for pursuant to this Part.
A consolidated financial statement from a parent corporation may be used to prequalify a subsidiary corporation or group of subsidiary corporations. A Guaranty Agreement must be submitted with the financial statement. If more than one subsidiary is identified by a holding company for bidding purposes, the Department will establish the bidding identity for each subsidiary.
The Department may request a consolidated financial statement from the parent corporation of a subsidiary requesting prequalification. The Department will deny credit for assets of a subsidiary that are unduly burdened or otherwise heavily encumbered, or are not available because of the financial condition of the parent corporation.
A combining financial statement may be used to prequalify an affiliated company or group of affiliated companies. Separate financial statements may be used to prequalify two or more related companies that provide the material production and construction capability necessary to support a work rating classification. An applicant seeking a financial rating for a group of affiliated companies based upon the combined affiliate data presented in a combining financial statement or separate financial statements shall present a full description of the businesses' operations and interdependencies. A Guaranty Agreement will be required. The Department will not credit assets between affiliates for purposes of individual affiliate financial ratings without a Guaranty Agreement and any necessary lease agreements in accordance with Section 650.260(b)(2) of this Part. In all instances, if more than one affiliate is identified for bidding purposes, the Department will establish the bidding identity for each affiliate.

f) Letters of Credit

Bank letters or letters of credit will not be considered in the computation of the financial rating.

History

Source: Amended at 32 Ill. Reg. 7989, effective May 8, 2008

44 Ill. Adm. Code 650.200 Methods of Improving a Financial Rating

a) Personal assets of stockholders, officers, directors, members, partners, beneficiaries or employees may not be pledged to improve the financial rating of the contractor seeking prequalification.

b) Assets of another company may not be pledged to improve the financial rating of the contractor seeking prequalification.

c) Loans which are renegotiated and involve the time frame or the encumbrance of assets of the company may be reconsidered. Only loans which total in excess of $100,000 will be considered. A copy of the new loan agreement is required.

d) Subsequent efforts to increase capitalization or to otherwise increase a financial rating which take place more than one year from the date of the financial statement will not be permitted to improve the financial rating of a company. Only subsequent efforts that are made within one year from the date of the financial statement which the Department considers material will be used to increase financial ratings.

History

Source: Amended at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.210 Computation of Financial Rating

The Department will use the financial data required by Sections 650.180, 650.190, and 650.200 of this Part to determine an applicant's financial rating by means of the formula set forth below. If the rating determined by the formula results in a negative value, the applicant will not be prequalified.

Total Current Assets

(1)

Discounted Assets

(2)

Net Current Assets

(line 1 minus line 2)

(3)

Current Liabilities

(4)

Allowable Net Current Assets

(line 3 minus line 4)

(5)

Total Allowable Real Estate

(6)

Total Allowable Equipment

(7)

Total Allowable Net Current Assets,

Real Estate and Equipment

(line 5 plus line 6 plus line 7)

(8)

Multiplication Factor

(if line 8 is negative to $200,000 use 10)

(if line 8 is between $200,001 and $300,000 use 11)

(if line 8 is over $300,001 use 12)

10, 11 or 12

(9)

Maximum Financial Rating

(line 8 x line 9 and round table nearest thousand)

(10)

44 Ill. Adm. Code 650.220 Work Rating - General

The work rating measures the applicant's capability to perform work in specific categories. A complete list of categories currently available is contained in Section 650.Appendix A of this Part.

44 Ill. Adm. Code 650.230 Determination of Work Ratings

a) The work rating is expressed as the dollar value of work of a particular category that the applicant can perform with its own organization and facilities in one construction season. The Work Rating (WR) is determined using the following factors:

The Performance Factor (PF);
The Experience Factor (EF);
The Equipment Factor (EqF); and
The Capacity to Perform (CP).

b) The General Questions form, the Experience form, the Record of Past Experience form, the Resume form, the Schedule of Contractor's Equipment form and the Affidavit of Possession form are used to calculate work ratings. Contractor performance reports (BC-1777) are also utilized (see Section 650.240 of this Part for more information concerning the Contractor's Performance Reports).

44 Ill. Adm. Code 650.240 Performance Factor (pf)

a) The Performance Factor is a numerical value which is determined by the contractor's performance evaluation in a work category during the previous year. At the close of each construction season, the Department, other State agencies or authorities using contractors based on the prequalification decisions of the Department and officials of a unit of local government administering a contract approved for award by the Department will evaluate each contractor who performed work for them during the previous year either as a prime contractor or as a subcontractor. This information is submitted on the Contractor's Annual Performance Report (BC-1777), and will be held confidential from disclosure in accordance with Section 7(1)(a) of the Freedom of Information Act [5 ILCS 140/7(1)(a)]. The performance evaluations are based on:

The quality of work performed for each work category defined in Section 650.Appendix A of this Part.
The overall execution of work as measured by evaluating six categories.

A) Organization and prosecution of the work;

B) Cooperation with public agency personnel responsible for contract administration and inspection;

C) Traffic control and site protection as provided by contract requirements;

D) Compliance with EEO and labor requirements;

E) Erosion Control; and

F) Contractor's ability to meet the Quality Control/Quality Assurance (QC/QA) plan as provided by contract requirements for materials production/construction quality control.

b) The performance evaluation scale is a rating from 2.0 to 8.0 in accordance with the following definitions:

8.0 Excellent

7.0 Good

6.0 Satisfactory

4.0 Marginal

2.0 Poor

c) The quality and evaluating categories under execution of work are defined and rated as follows.

Quality − The project's durability and appearance, the knowledge of supervisory personnel, and the compliance with contract requirements (i.e., plans, specifications, field inspection, etc.) are considered.
Quality Scale

8.0 The contractor exceeded project requirements in all areas considered.

7.0 The contractor exceeded project requirements in a majority of areas considered.

6.0 The contractor met project requirements in all areas considered.

4.0 The contractor did not meet project requirements in one area considered.

2.0 The contractor did not meet project requirements in two or more areas considered.

Organization/Prosecution − The contractor's ability to diligently prosecute work by planning and scheduling labor, materials and the work of subcontractors on the project site are considered.
Organization/Prosecution Scale

8.0 The contractor exceeded project requirements in all areas considered and completed the project well ahead of schedule.

7.0 The contractor exceeded project requirements in a majority of areas considered and the project was completed slightly ahead of schedule.

6.0 The contractor met project requirements in all areas considered and the scheduled completion date was met.

4.0 The contractor did not meet project requirements in one area considered and occasionally did not work when conditions permitted. The scheduled completion date was met.

2.0 The contractor did not meet project requirements in two or more areas considered and the scheduled completion date was not met.

Cooperation − The contractor's willingness to negotiate contract disputes, to respond to reasonable requests by the resident engineer and to respond to various Departmental correspondence are considered.
Cooperation

8.0 The contractor exceeded project requirements in all areas considered.

7.0 The contractor exceeded project requirements in a majority of areas considered.

6.0 The contractor met project requirements in all areas considered.

4.0 The contractor did not meet project requirements in one area considered.

2.0 The contractor did not meet project requirements in two or more areas considered.

Traffic Control/Site Protection − The appearance of the traffic control devices, the response to repair deficient devices and the contractor's willingness to comply with the Traffic Control Plan (TCP) are considered.
Traffic Control/Site Protection

8.0 The contractor exceeded project requirements in all areas considered.

7.0 The contractor exceeded project requirements in a majority of areas considered.

6.0 The contractor met project requirements in all areas considered.

4.0 The contractor did not meet project requirements in one area considered.

2.0 Either the contractor did not meet project requirements in two or more areas considered or the contractor committed an act or omission which seriously compromised the safety of the public.

EEO/Labor Compliance − The contractor's compliance with the Equal Employment Opportunity program and compliance with labor laws are considered.
EEO/Labor Compliance

8.0 The contractor exceeded project requirements.

7.0 The contractor met project requirements through extraordinary effort and initiative.

6.0 The contractor met project requirements with minimum effort and initiative.

4.0 The contractor met project requirements, but had to be motivated by Department personnel.

2.0 The contractor did not meet project requirements.

Erosion Control − The contractor's compliance with the project's erosion control plan and all pertinent federal and State laws, permits and regulations.
Erosion Control

8.0 The contractor exceeded project requirements.

7.0 The contractor exceeded project in a majority of the areas considered.

6.0 The contractor met project requirements in all areas.

4.0 The contractor did not meet the project requirements in one area considered.

2.0 The contractor did not meet the contract requirements in two or more areas.

QC/QA − The contractor's ability to meet QC/QA inspection, testing, and documentation requirements; take control of the product; take corrective action; and communicate production/construction issues to Department personnel are considered.
QC/QA Scale

8.0 The contractor exceeded QC/QA requirements in all areas considered.

7.0 The contractor exceeded QC/QA requirements in a majority of areas considered.

6.0 The contractor met QC/QA requirements in all areas considered.

4.0 The contractor did not meet QC/QA requirements in one area considered.

2.0 The contractor did not meet QC/QA requirements in two or more areas considered.

d) The Performance Factor is calculated by first determining the Project Cost Ratio (PCR) for the relevant work category. The PCR is the ratio of the value of all contracts being evaluated to the value of all contracts performed. Secondly, a weighted performance evaluation value is established for each performance evaluation completed by determining the product of the PCR, the rating for quality given on the relevant performance evaluation and the averaged ratings for execution given on the relevant performance evaluation divided by 6. Finally, the summation of all weighted performance evaluation values is divided by 6 to arrive at the PF.

e) A work rating will be subject to denial or revocation if the summation of all weighted performance evaluation values for a work rating category is less than 6.0 for two successive years. A work rating will be subject to denial or revocation if the summation of all weighted performance evaluation values for a work rating category is less than 4.0 for one year.

f) The Department will evaluate performance on any individual contract or group of contracts for purposes of determining the current responsibility of a contractor when the Engineer of Construction has determined that performance on any contract or contracts may not be acceptable and that an immediate evaluation is necessary to assess the responsibility of a contractor in order to protect the interests of the State in sound procurement practices. If the evaluation ordered by the Engineer of Construction results in the quality of work or the average overall execution of work ratings being rated at less than 4.0, the work ratings evaluated will be revoked.

g) If a contractor receives a Quality of Work Rating of 2 for any work category being evaluated on any one contract, the work rating will be revoked.

h) The contractor shall be notified of the performance evaluation in writing within 14 days with a detailed explanation of any substandard items. If a performance evaluation results in a denied, reduced or revoked work rating, the contractor may proceed with the review procedures in accordance with Section 650.150 of this Part.

i) If an applicant did not have a contract with the Department in the previous year, the last evaluation issued within a five year period will be used. If an applicant has not had an evaluation in the last five years or is applying for an initial rating in a category and lists no public agencies or private customers as references, a Performance Factor of "1" will be used until an actual evaluation is made.

History

Source: Amended at 30 Ill. Reg. 16373, effective October 10, 2006

44 Ill. Adm. Code 650.250 Experience Factor (ef)

a) The Experience Factor is the cumulative dollar value of work performed in a given work category by the applicant's own forces. To be given credit for this experience, the work must have been performed either for the Department or other entity the Department considers to be a source of valid and verifiable information. The experience is the total experience of the applicant as a continuously operating entity. Credit will not be given for work performed as an owner or employee of another firm. Applicants will receive incremental credit for successfully completed work in a work category even though the contract is not completed.

b) To accurately evaluate an applicant's experience, the following shall be provided for each project.

The project owner's name, address (City and State) and phone number.
The dollar value of work performed for each work category within the project.
The year the work was performed.

c) Applicants requesting a work rating for the first time should list experience for a minimum of three years (if available) to assist the Department in the evaluation of their capabilities. As prequalification is renewed, and subsequent records of past experience are filed, the Department will compute the cumulative dollar value of work performed for each work category.

44 Ill. Adm. Code 650.260 Equipment Factor (eqf)

a) Work categories which require the applicant to have specific equipment and plant facilities are indicated in Appendix A. Determination of work ratings in these categories requires the calculation of an Equipment Factor which measures the physical productive capacity of the applicant's equipment and facilities. Equipment Factors are based on standards which produce an average dollar value of productivity as set forth in Appendix A. The Department may adjust the standards as necessary to reflect increases in construction costs. The word "equipment" used in this Section includes all machines, tools and plant facilities.

b) In calculating Equipment Factors, the Department will consider:

Equipment owned outright.
Rented equipment. Confirmation of rented equipment available for use by the lessee shall be by submittal of a signed and notarized affidavit. No credit will be given for rented equipment not available to establish an equipment factor. Applicants shall submit a copy of the rental agreement, which must contain the following:

A) Time period.

B) Make, model, year, serial number and size or capacity of the equipment.

C) Monetary consideration.

D) Signature of the lessee and lessor.

c) Credit for equipment will not be given until the applicant provides proof that all required federal, State or local permits or licenses to operate the equipment have been obtained.

d) No credit will be given for any piece of equipment that is not serviceable, that is in disrepair or that is inoperable. A disassembled piece of equipment, including new equipment, that is in all other respects serviceable, operable if assembled and available in accordance with subsection (f) may be credited provided that it will be assembled for the performance of contracts awarded during the period of prequalification. For example, a batch plant supporting a Portland Cement Concrete Paving work rating may be disassembled, stored and reassembled for use on contracts awarded during the period of prequalification.

e) Equipment, including but not limited to front-end loaders, motor graders and cranes are versatile and can perform several types of work. If the contractor does not assign equipment to a specific category, the Department will assign the equipment on the basis of the contractor's work experience and requested ratings.

f) The Department will give credit for equipment that is available for a work rating category. Conditions rendering equipment unavailable may include but are not limited to the following:

Equipment owned but leased to another individual or business.
Equipment that is devoted to a business enterprise of the applicant unrelated to or inconsistent with making the equipment available for the work category sought. Examples of this unavailability condition include but are not limited to the following. An applicant may have front-end loaders that are used in a quarry. This equipment would not be considered available for the work category of Earthwork. An applicant may sell the product of a concrete plant to the public by retail sales. This plant would not be available for the work category of Portland Cement Concrete Paving.
Equipment that is not readily transported or relocated and that is not located within the State of Illinois or a bordering state or commonwealth at a location sufficiently proximate to the State of Illinois necessary to satisfy contract delivery requirements.
Equipment that is readily transported or relocated but the applicant does not demonstrate, with intent and action, the transportation or relocation to the State of Illinois or a bordering state or commonwealth at a location sufficiently proximate to the State of Illinois necessary to satisfy contract delivery requirements.
Equipment not available to the applicant or not capable of being used to perform contracts for any reason.

g) The applicant shall make equipment available for inspection by the Department to verify possession, to determine serviceability, and to confirm availability for use in the work category.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.270 Capacity to Perform (cp)

a) The Capacity to Perform represents the annual dollar value of work completed by an applicant that is related to the category of work for which a rating is requested. The work must have been performed for the Department or other entity the Department considers to be a source of valid and verifiable information. The performance of the applicant must be that as a continuous operating entity. Credit will not be given for work performed as an owner or employee of another firm.

b) The Capacity to Perform is the average of the three highest volume years in the last ten years. If a new applicant does not have three years of experience or if there is an increase in the volume of work performed, the Department will use a value that does not exceed the highest volume year as the capacity to perform.

History

Source: Amended at 30 Ill. Reg. 16373, effective October 10, 2006

44 Ill. Adm. Code 650.280 Calculation of Work Ratings

a) Applicants assigned work ratings in the categories of Earthwork, Portland Cement Concrete Paving, Bituminous Plant Mix, Bituminous Aggregate Mixtures, Aggregate Bases & Surfaces (type A or B) and Cover & Seal Coats are required to possess specific equipment or plant facilities which are assigned Equipment Factors. Work ratings in these categories are calculated by the primary formula.

WR = PF (EF/2 + EqF/2) (Primary Formula)

b) Equipment Factors based on plant production may be quite large, but new or inexperienced contractors may not be able to realize the full potential of their capacity. For this reason, the primary formula considers experience as well as equipment and plant capacity. In the simplest case, a new applicant with no experience and a presumed performance factor of 1.0 will receive a work rating equal to one half the calculated Equipment Factor. As the applicant gains experience, the work rating will increase. When the Experience Factor equals or exceeds the Equipment Factor, the work rating is calculated by the advanced formula below.

WR = PF X EqF (Advanced Formula)

c) All remaining work categories are calculated by the secondary formula.

WR = PF X CP X 1.2 (Secondary Formula)

d) The secondary formula does not utilize an equipment factor because of the immeasurable productive capacity of the equipment or plant facility; however, equipment must be owned by or leased to the applicant. See Section 650.Appendix A of this Part for a listing of equipment or plant facilities. The secondary formula includes a factor of 1.2 to provide a margin for growth.

e) An applicant's capacity to perform may exceed the calculated equipment factor. This can occur by good management, efficiency and additional hours of work. When this occurs, the primary and advanced formulas will be replaced by the secondary formula.

f) The work rating in any given category may not exceed the financial rating of the applicant.

g) A work rating may be designated as "Illinois Work Only." This work rating indicates the dollar value of work which the applicant's own forces can perform within the State of Illinois in one construction season. This rating will be established by the Department if the applicant does work in more than one state or outside the continental United States and it would be impractical to verify all outstanding work.

h) Prior to any consideration for establishing a work rating value, the applicant shall provide a list of all technical, supervisory and key personnel who would manage a project awarded by the Department. This list should include the individual's job title and number of years of construction experience. The Department may also require the submittal of resumes of the above individuals. Applicants prequalifying with the Department for the first time shall be required to submit resumes. Insufficient personnel may be justification for a reduction in the rating of a work category as determined by the primary, advanced or secondary formula. Hiring of additional personnel may be justification for an increase in the rating of a work category. Applicants without experienced personnel for a requested work category may be denied the rating.

i) Methods to Improve a Work Rating

Hiring of additional personnel.
Purchase, lease or rental of additional equipment.
Completion of additional work.

j) A contractor may request additional rating in a work category at any time during the prequalification period by submitting a revised application or supplemental information.

History

Source: Amended at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.290 Advertising for Bids

The procedures for procuring contracts are set out in the Chief Procurement Officer's rules for contract procurement found at 44 Ill. Adm. Code 6. The procedures of this Subpart B govern the granting of authority to bid on contracts advertised for bids in the Transportation Procurement Bulletin in accordance with the Chief Procurement Officer's rules for contract procurement.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.300 Request for Authorization to Bid or Not for Bid Status

A Request for Authorization to Bid or Not for Bid Status (Form BDE 124) is published with the Transportation Procurement Bulletin. The Form BDE 124 shall be used by contractors to request Authorization to Bid on contracts advertised in the Transportation Procurement Bulletin. Anyone may obtain proposal forms and plans regardless of prequalification status. An Authorization to Bid must be granted in accordance with this Part before a prequalified contractor may submit a bid, unless prequalification is waived.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.310 Affidavit of Availability

a) An Affidavit of Availability (Form BC-57) is attached to the Transportation Bulletin and must be submitted with a request for Authorizations to Bid. It is a sworn statement concerning the contractor's present and pending contract commitments. The contractor shall not omit or misrepresent its work outstanding. When the contractor has uncompleted or pending work as a party of a joint venture, the contractor's responsible portion of the work shall be shown. The affidavit shall be signed by an officer or director of a corporate contractor, and otherwise, an owner shall sign. The affidavit is not required when Authorization to Bid is not being requested. The affidavit shall include:

The amount of all uncompleted work, by type, either as a principal or subcontractor together with the name of the agency under whose jurisdiction the work is being performed. All uncompleted work shall be based upon the engineer's or owner's most recent estimate.
The commitment of equipment and personnel on a payroll or rental basis even though no formal contract exists.
All work on which the contractor is the low bidder and which has not yet been awarded.
A listing of all subcontractors and the value of work sublet.

b) Prospective bidders shall notify the Department within two working days of any low bids pending award or contracts awarded after submission of the affidavit.

c) Facsimiles of the affidavit will be accepted for analysis purposes. Authorization to Bid will not be issued without a correct, signed and notarized original affidavit in the Department's Central Bureau of Construction's possession by the cut-off date specified in the Transportation Bulletin.

d) A contractor may request to forego filing an affidavit if it has a financial rating at either of the following levels. The Prequalification Section will grant such a request provided the contractor's existing contracts with the Department are not behind approved contract progress schedules and provided the most recent performance evaluation rating is not less than 6.0 in the performance factor calculation. (See Section 650.240 of this Part.)

A financial rating of $300 million.
A financial rating of at least $150 million or a Department calculated net worth of at least $40 million, either in conjunction with two or more work ratings calculated to equal or exceed $50 million each.

History

Source: Amended at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.315 Disclosure of Other Procurement Relationships

a) Section 50-35(h) of the Illinois Procurement Code [30 ILCS 500/50-35(h)] requires that all bids of more than $50,000 be accompanied by disclosure of all current or pending contracts, proposals, leases, or other ongoing procurement relationships the contractor has with any other unit of State government.

b) The Department provides the form for making the required disclosure of other procurement relationships with the Invitation for Bids in the Transportation Procurement Bulletin.

c) Contractors submitting an Affidavit of Availability with a request for Authorization to Bid may incorporate by reference on this disclosure form the contents of the Affidavit of Availability that are responsive to the disclosure requirement. Procurement relationships that are not included in the Affidavit of Availability shall be disclosed on the form.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.320 Analyzing Requests for Authorization to Bid

a) In analyzing a contractor's request for Authorization to Bid, it is necessary to determine the contractor's available bidding capacity.

The total value of all uncompleted work awarded to the contractor, as shown on the Affidavit of Availability, is deducted from the financial rating shown on the Certificate of Eligibility. The result is the Available Financial Rating.
The value of each type of work uncompleted and included in pending low bids the contractor will perform with its own forces as a prime or subcontractor, as shown on the Affidavit of Availability, is deducted from the corresponding category of work rating shown on the Certificate of Eligibility. The result is the Available Work Rating in each category. If a contractor has a work rating designated for "Illinois Work Only," then only Illinois work is deducted from the corresponding category of work rating; however, all work must be shown on the affidavit to determine the Available Financial Rating.
When the proposed work requires more than one construction season (18 months or 168 working days) to complete, the work ratings shown on the Certificate of Eligibility are multiplied by the number of construction seasons required for completion. The Available Work Rating is then determined as stated in subsection (a)(2) of this Section. Similar consideration is given to work reported on the Affidavit of Availability. Each work category of a project is divided by the number of construction seasons to complete the project. The Available Work Rating is then determined as stated in subsection (a)(2) of this Section.
Contractors who have ratings in major work categories are given credit for work in applicable minor work categories. For example, a contractor with a rating in Portland Cement Concrete Paving or Structures is given credit for work in the minor work category of Concrete Construction. The work category definitions in Appendix A of this Part will indicate if a minor work category is applicable. Credit given for a minor work category is deducted from the contractor's available rating in the corresponding major work category.

b) In order to be issued an Authorization to Bid, a contractor's Available Work Ratings for all applicable categories must equal or exceed 50 percent of the estimated value of the contract, less designated specialty items. For Division of Aeronautics work, the Available Work Ratings must equal or exceed 51 percent of the estimated value. A contractor's Available Financial Rating must equal or exceed the total estimated value of each contract. However, the low bidder will not be awarded the contract unless the Available Financial Rating equals or exceeds the actual price bid.

c) The Department will occasionally advertise for bids a contract which consists of an item or items which are of the type commonly constructed by the Capital Development Board (such as general building construction, roofing, plumbing, heating, ventilation and air conditioning) rather than by the Department of Transportation. In such instances, the advertisement will indicate waiver of prequalification under the rules of the Department according to Section 650.70 and will specify prequalification by the Capital Development Board pursuant to 44 Ill. Adm. Code 950. Any contractor requesting Authorization to Bid on such a project should include a current "Capital Development Board Certificate of Contractor Prequalification."

History

Source: Amended at 32 Ill. Reg. 7989, effective May 8, 2008

44 Ill. Adm. Code 650.330 Issuance of Authorization to Bid

a) There is no limit to the number of Authorizations to Bid issued a contractor as long as the available bidding capacity satisfies the requirements of each individual contract. If the contractor is the low bidder on two or more contracts and the sum of the bids exceeds the available bidding capacity, the Department will select the contract or contracts for award.

b) Authorization to Bid will not be issued on documentation received after 4:30 p.m. prevailing time on the cut-off date indicated in the Transportation Bulletin. In addition, any request to be removed from the bidder's list or to dissolve a joint venture must be received prior to the time indicated in the previous statement.

c) Under certain circumstances, the Department may issue Authorization to Bid to a firm without restriction based on available bidding capacity. To be considered for unrestricted authorization, the contractor must satisfy either of the following conditions, must not be behind the approved contract progress schedule on any current contract, and must be rated not less than 6.0 in the performance factor calculation. (See Section 650.240 of this Part.)

A financial rating of $300 million.
A financial rating of at least $150 million or a Department calculated net worth of at least $40 million, either in conjunction with two or more work ratings calculated to equal or exceed $50 million each.

History

Source: Amended at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.340 Joint Ventures

a) Prequalified contractors may combine their available bidding capacity and request an Authorization to Bid for a single contract to bid as a joint venture after Department approval.

b) Each request for approval of a joint venture shall be indicated by the filing of a Certificate of Joint Venture for each of the contracts for which joint venture approval is sought. The form is available from the Prequalification Section. It identifies the managing partner and indicates the joint venture agreement shall be available to the Department for inspection. In addition, each joint venture partner firm shall submit an Affidavit of Availability. The Certificate must be received no later than 4:30 p.m. prevailing time at least seven days prior to the scheduled date of the letting for which bidding proposals are sought.

c) The proposed joint venture shall not be approved for the issuance of bidding proposals if the establishment of a joint venture would unduly restrict competition. A determination that a proposed joint venture would unduly restrict competition is limited to any of the following reasons:

That the proposed joint venture would consist of more than three prequalified contractors unless the project is designated by the Department in the advertisement for bids as open for unrestricted joint venturing due to the magnitude, complexity and risks of the work.
That for letting items estimated by the Department to be bid at less than $1,000,000, more than one of the proposed joint venture partners has the individual prequalification ratings and bid capacity to bid the item without the approval of the venture. This determination shall not apply to joint ventures between affiliated contractors based upon 51 percent or more common controlling ownership or common management where the officers, directors or general partners control the board of directors and/or management of each contractor.

d) Contractors whose financial ratings are based upon unaudited financial statements will not be permitted to joint venture with each other to bid contracts that are estimated to exceed $750,000 or $1,500,000, depending on the contractor's unaudited status (see Section 650.170(c)(1)(A) and (B)). However, such contractors may be permitted to joint venture with contractors who have a financial rating based upon an audited statement to bid contracts estimated to exceed $750,000.

e) If a joint venture work rating is limited by its maximum financial rating, the full value of the computed work rating will be used in analyzing the joint venture request for a bidding proposal. However, the combined maximum work rating in any category shall not exceed the combined maximum financial rating of the joint venture.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.350 Denial of Authorization to Bid

The Department will not issue Authorization to Bid for any of the following reasons:

a) The contractor is not prequalified under the provisions of this Part.

b) The contractor will not be prequalified on the day of the scheduled letting which is the subject of the Request for Authorization to Bid.

c) The contractor has uncompleted work on previously awarded contracts which, in the judgment of the Department, might hinder or prevent the prompt completion of additional work if awarded.

d) The contractor has provided false information on a bidder's Affidavit of Availability or has not promptly notified the Department of subsequent awarded contracts or pending awards.

e) The contractor has failed to submit final documentation on any open contract or to pay, or satisfactorily settle, all bills due for labor and material on previously awarded contracts in force at the time of issuance of proposal forms.

f) The contractor has failed to comply with this Part or the bidding procedures of the Department.

g) The contractor has defaulted or otherwise breached its obligations on Department awarded contracts or contracts approved for award by the Department; has failed to execute an awarded contract; or has caused the readvertisement of a project through mistakes or neglect in the bidding procedures.

h) When any agent, servant, employee, associated organization, affiliate or related entity of the contractor has participated in the preparation of plans, specifications or special provisions for the proposed work.

i) The contractor is subject to revocation of prequalification ratings in accordance with Section 650.110 of this Part or revision of prequalification ratings in accordance with Section 650.130 of this Part.

History

Source: Amended at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.360 Purpose

Federal regulations establishing and implementing the disadvantaged business enterprise (DBE) program (49 CFR 26) applicable to all United States Department of Transportation programs require the Department to maintain a participant list that includes all firms that bid on federal-aid contracts and that bid or quote on subcontracts to federal-aid contracts. The purpose of this Subpart C is to establish and maintain a participant list of all firms that are participating or are attempting to participate on federal-aid contracts. This Subpart C also extends coverage of the list to all Department contracts regardless of funding.

History

Source: Added at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.370 Registration of Subcontractors

a) All firms desiring to bid or quote subcontract work to prequalified contractors holding authorization to bid on contracts advertised by the Department shall register on an annual basis for inclusion in the participant list. Prequalified contractors are included automatically on the participant list. Participant firms that are not subcontractors or prequalified but that desire to bid or quote work or materials on any Department contract shall register in accordance with this Subpart C.

b) The Department shall furnish an electronic registration form for use by potential subcontractors and other participant firms desiring registration. The electronic form is obtained and shall be completed at the Department's website at http://www.idot.illinois.gov/doingbusiness/procurements/constructionservices

/index. Requests for information regarding registration and the electronic form may be made by mail or by telephone to:

Illinois Department of Transportation

Bureau of Construction, Prequalification Section

2300 S. Dirksen Parkway, Room 322

Springfield IL 62764

217/782-6667

c) The following information will be required to be reported on the registration form:

the firm's name;
the firm's address and telephone number;
the firm's tax ID type and tax ID number;
the date the firm was established and its form of business organization;
the annual gross receipts of the firm for the prior fiscal year of the firm;
the owners of the firm; and
type of work.

d) A registered firm will be issued a confirmation number.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.380 Eligibility to Quote or Perform Subcontract Work

A prequalified contractor who is issued an authorization to bid in accordance with this Part may solicit or accept bids or quotes from potential subcontractors, for the performance of work on contracts that are not registered with the Department. However, subcontractors must be registered in accordance with Subpart C before being approved to work on projects. This requirement will be enforced by appropriate contract provisions.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.APPENDIX A Available Work Categories

1 Earthwork

2 Portland Cement Concrete (PCC) Paving

3 Hot-Mix Asphalt (HMA) Plant Mix

5 HMA Paving

6 Cleaning and Sealing Cracks & Joints

7 Soil Stabilization and Modification

8 Aggregate Bases & Surfaces (Type A and Type B)

9 Structures (Highway, Railroad, and Waterway)

10 Structures Repair

11 Anchors and Tiebacks

12 Drainage

13 Drainage Cleaning

14 Electrical

15 Cover and Seal Coats (Type A and Type B)

16 Slurry Applications

17 Concrete Construction

18 Landscaping

19 Seeding and Sodding

20 Vegetation Spraying

21 Tree Trimming and Selective Tree Removal

22 Fencing

23 Guardrail

24 Grouting

25 Painting and Cleaning

26 Signing

27 Pavement Markings (Paint, Thermoplastic, Epoxy, Polyurea, and Modified Urethane)

30 Installation of Raised Pavement Markers

31 Pavement Texturing and Surface Removal

32 Cold Milling, Planing and Rotomilling

33 Erection

34 Demolition

35 Fabrication

36 Tunnel Excavation

37 Expressway Cleaning

38 Railroad (Track) Construction

39 Marine Construction

40 Hydraulic Dredging

41 Hot (in-place) Recycling

42 Cold (in-place) Recycling

1 − EARTHWORK

Consists of clearing, grubbing, tree removal (except selective tree removal), hedge removal, roadway excavation, channel excavation, borrow excavation, special excavation, topsoil excavation and placement, ditch excavation, common excavation, solid rock excavation, mine refuse excavation, pavement removal, hauling, embankment (earth, stone, gravel or other materials), backfilling (all types of materials), grading, compacting and trenching. This category is also applicable to projects involving Demolition (see definition), riprap installation, construction of aggregate ditch, construction of gabions, slope mattress and revetment mats (riprap or interlocking concrete blocks) and removals. In addition, this category is applicable to Seeding for Land Reclamation projects.

EQUIPMENT: Scrapers, gradalls, graders, cranes, shovels, excavators, backhoe loaders, front‑end loaders, skid-steer loaders, bulldozers, sheeps foot rollers, vibratory rollers or fine grading equipment are required to establish a rating.

CALCULATION OF WORK RATING: Primary or advanced formula.

Equipment

Equipment factor (EqF)

Self-propelled scrapers

$21,000 per cubic meter of heaped capacity

$16,000 per cubic yard of heaped capacity

Pull type scrapers

$12,000 per cubic meter of heaped capacity

$9,000 per cubic yard of heaped capacity

Gradalls

$115,000 each

Graders

$100,000 each

Cranes, shovels, excavators and backhoe loaders

$360,000 for .5 cubic meter bucket size

$405,000 for .75 cubic meter bucket size

$480,000 for 1 cubic meter bucket size

$580,000 for 1.25 cubic meter bucket size

$730,000 for 1.5 cubic meter bucket size

$800,000 for 1.75 cubic meter bucket size

$880,000 for 2 cubic meter bucket size

$1,060,000 for 2.5 cubic meter bucket size

$1,400,000 for 3 cubic meter bucket size

$1,730,000 for 3.5 cubic meter bucket size

$375,000 for .75 cubic yard bucket size

$405,000 for 1 cubic yard bucket size

$460,000 for 1.25 cubic yard bucket size

$550,000 for 1.5 cubic yard bucket size

$635,000 for 1.75 cubic yard bucket size

$750,000 for 2 cubic yard bucket size

$835,000 for 2.5 cubic yard bucket size

$1,010,000 for 3 cubic yard bucket size

$1,210,000 for 3.5 cubic yard bucket size

$1,440,000 for 4 cubic yard bucket size

$1,610,000 for 4.5 cubic yard bucket size

Front-end loaders

$115,000 for less than 1.5 cubic meter bucket size

$210,000 for 1.5 to 2 cubic meter bucket size

$340,000 for 2.1 to 3 cubic meter bucket size

$475,000 for 3.1 to 4 cubic meter bucket size

$605,000 for greater than 4 cubic meter bucket size

$115,000 for less than or equal to 2 cubic yard bucket size

$230,000 for 2.1 to 3 cubic yard bucket size

$375,000 for 3.1 to 4 cubic yard bucket size

$460,000 for 4.1 to 5 cubic yard bucket size

$605,000 for greater than 5 cubic yard bucket size

Skid-steer loaders

$50,000 each

Bulldozers

$200,000 each

Fine grading equipment

$200,000 each

Self-propelled rollers

$50,000 each

Pull-type rollers

$15,000 each

Disc

$15,000 each

Water truck

$1.35 per liter

$5 per gallon

Off-road and bottom-dump trucks

$20,000 per cubic meter of heaped capacity

$15,000 per cubic yard of heaped capacity

2 − PORTLAND CEMENT CONCRETE (PCC) PAVING

Consists of constructing pcc pavement, continuously reinforced pcc pavement, pcc base course and pcc base course widening, cement aggregate mixture sub-base, pozzolanic stabilized mixture sub-base and pozzolanic stabilized base course. This category is also applicable to Concrete Construction.

EQUIPMENT: A central mix plant or a batch plant with truck mixers, formless paver and finishing machine. A concrete plant with either a formless paver or a finishing machine is the minimum equipment requirement.

CALCULATION OF WORK RATING: Primary or advanced formula.

Equipment

Equipment Factor (EqF)

Central Mix Plant and Batch Plant*

(C.M./Batch) x (20 Batches/Hr.) x (8 Hrs./Day) x (80 Days/Yr.) x ($105/C.M.) x (1.0) for an approved plant

(C.Y./Batch) x (20 Batches/Hr.) x (8 Hrs./Day) x (80 Days/Yr.) x ($80/C.Y.) x (1.0)

Central Mix Dual Plant and Dual

Batch Plant*

(C.M./Batch) x (20 Batches/Hr.) x (8 Hrs./Day) x (80 Days/Yr.) x ($105/C.M.) x (1.7) for an approved plant

(C.Y./Batch) x (20 Batches/Hr.) x (8 Hrs./Day) x (80 Days/Yr.) x ($80/C.Y.) x (1.7)

To receive the maximum equipment factor (EqF) for a batch plant, the contractor shall possess a minimum of one truck mixer for every cubic yard of batch capacity of the plant.

3 − HOT-MIX ASPHALT (HMA) PLANT MIX

The placement of HMA pavement (Full Depth), binder and surface course (Class I and Superpave), base course widening, base course, stabilized sub-base, shoulder, shoulder curb, sidewalk, driveway, median, patching, open graded asphalt friction course and incidental surfacing. Also includes placement and hot recycling of reclaimed aggregates and asphaltic cements, and placement and production of cold mix stabilized base. This category is also applicable to HMA Paving.

EQUIPMENT REQUIRED: An approved HMA plant, an approved HMA spreading and finishing machine and compaction equipment.

CALCULATION OF WORK RATING: Primary or advanced formula.

Plant Production Rating

Equipment Factor (EqF)

Metric Tons Per Hour (MTPH)

MTPH x (8 Hrs./Day) x (80 Days/Yr.) x ($72/Ton)

Tons Per Hour (TPH)

TPH x (8 Hrs./Day) x (80 Days/Yr.) x ($69/Ton)

Note: An approved HMA plant is a new or used plant that is used to calculate the EqF pursuant to Section 650.260 of this Part, and that is assigned a nominal production rating by the Bureau of Materials and Physical Research for the work category. Contracts may require the production of Class I or Superpave mixtures. The approved plant will be rated for production of Class I and Superpave mixtures prior to the production of such mixtures.

5 − HMA PAVING

Consists of placing HMA base, surface, widening or shoulders with a HMA spreading and finishing machine. This category is restricted to either 1,200 tons in any one contract (Class I, BAM, or Superpave) or as specified by the local agency. HMA, sidewalk, driveway, median and patching are not to be included in the tonnage determination. This work can also be completed under HMA Plant Mix.

EQUIPMENT REQUIRED: An approved HMA spreading and finishing machine and compaction equipment.

CALCULATION OF WORK RATING: Secondary formula.

6 − CLEANING AND SEALING CRACKS & JOINTS

Consists of routing and sealing cracks for asphaltic and concrete pavements.

EQUIPMENT REQUIRED: Router and melter.

CALCULATION OF WORK RATING: Secondary formula.

7 − SOIL STABILIZATION AND MODIFICATION

Consists of constructing soil-cement base course and lime modified soils.

EQUIPMENT REQUIRED: Grader, rotary speedmixer, mechanical spreader, water tanker and compaction equipment.

CALCULATION OF WORK RATING: Secondary formula.

8 − AGGREGATE BASES & SURFACES (TYPE A)

Consists of constructing granular sub-base, aggregate base course, aggregate surface course, aggregate shoulders and aggregate-turf pavement. Also includes construction of cement aggregate mixture sub-base, pozzolanic stabilized mixture sub-base, pozzolanic stabilized base course, lime modified soils (disc harrow method), calcium chloride applications, and sub-ballast.

8 − AGGREGATE BASES & SURFACES (TYPE B)

Consists of hauling and spreading aggregate.

EQUIPMENT REQUIRED: Grader or mechanical spreader, and compaction equipment if applicable.

CALCULATION OF WORK RATING: Primary or advanced formula.

Equipment

Equipment Factor (EqF)

Grader and compaction equipment (Type A)

$375,000 each

Mechanical spreader and compaction equipment (Type A)

$375,000 each

Grader (Type B)

$375,000 each

Mechanical spreader (Type B)

$375,000 each

Widener

$200,000 each

9 − STRUCTURES (HIGHWAY)

Consists of excavation for structures (includes cofferdams, temporary cribs, etc.), constructing concrete structures (bridges, box culverts, etc.), membrane waterproofing, constructing steel structures (bridges, corrugated structural plate drainage structures, etc.), constructing metal railings, constructing timber structures (bridges, etc.), erection, installation of reinforcement bars, piling (all types), and construction of temporary bridges. This category is also applicable to Structures Repair, Demolition, Concrete Construction, Fencing and Signing.

EQUIPMENT REQUIRED: see Structures (Waterway) Equipment.

CALCULATION OF WORK RATING: see Structures (Waterway) Calculation.

9 − STRUCTURES (RAILROAD)

Consists of items listed above. This category is specific to structures carrying railroad transportation.

9 − STRUCTURES (WATERWAY)

Consists of the construction of major structures and appurtenances for water storage and distribution, flood control and recreation. This includes dams, spillways, spillway crest gates, sluiceway, sluiceway gates, canals, channel appurtenances (culverts, flumes, inverted siphons, etc.), pump stations (including mechanical equipment), aqueducts, irrigation structures (checks, dams, gates, etc.), locks and dams, dikes, groins and jetties. This category also includes excavation for structures (includes cofferdams, temporary cribs, etc.), piling (all types), de‑watering and Demolition

EQUIPMENT: Bulldozers, front-end loaders, shovels, cranes, backhoe loaders, excavators, pile hammers and bridge deck finishing machines. A crane is the minimum equipment requirement. However, a crane is not required for those contractors requesting a structures rating for $150,000 or less.

CALCULATION OF WORK RATING: Secondary formula.

10 − STRUCTURES REPAIR

Consists of bridge deck repair or bridge deck removal and replacement. This includes the use of latex modified concrete, polymer concrete, epoxy and other materials for patching, deck overlays, sealing, etc. Also includes membrane waterproofing, constructing metal railings, installation of reinforcement bars, superstructure repairs such as replacement of joints, replacement of bearings, beam straightening (heat or mechanical), repair and retrofit of fracture and fatigue distressed steel girders, member strengthening, etc. Substructure repairs are also included and consist of the use of epoxy, shotcrete and other materials for minor repairs of spalled or deteriorated concrete. This category is also applicable to Concrete Construction, Fencing and Signing. This work can be completed under the Structures (Highway) category.

EQUIPMENT: Front-end loaders, cranes, backhoe loaders, excavators and bridge deck finishing machines. A crane is the minimum equipment requirement. However, a crane is not required for those contractors requesting a structures repair rating for $150,000 or less.

CALCULATION OF WORK RATING: Secondary formula.

11 − ANCHORS AND TIEBACKS

Construction of all types of anchors and tiebacks that provide resistance to lateral and uplift forces in bridge abutments, retaining walls, bulkheads, dams, deep excavations and various support systems (underpinning, etc.).

EQUIPMENT REQUIRED: Auger, drilling, or jacking equipment. Grouting equipment to include air compressor, mixing equipment, agitator-type reservoir tank and grout pump.

CALCULATION OF WORK RATING: Secondary formula.

12 − DRAINAGE

Consists of the installation and removal of precast concrete box culverts, installation and removal of pipe culverts and storm sewers, relining of pipe culverts and storm sewers, installation of pipe drains and pipe underdrains, exploration trenches for locating farm underdrains, minor boring and jacking of pipe-in-place, installation of cast iron soil pipe, installation of water mains and water service lines, adjusting sanitary sewers and water service lines, construction of catch basins, manholes, inlets, inspection holes and valve vaults, minor cleaning of catch basins, adjustment and reconstruction of catch basins, manholes, inlets, inspection holes and valve vaults, installation and adjustment of frames and grates, filling existing manholes, catch basins, inlets, wells and drainage structures, moving fire hydrants, moving domestic meter vaults and water service boxes, riprap installation, construction of aggregate ditch, installation of excelsior blanket, fiber mat and fiberglass roving, construction of gabions, slope mattress and revetment mats (riprap or interlocking concrete blocks), construction of trench and backfill for communication cables, ducts and conduits, construction of inverted siphons, construction of flumes, construction of pump stations (including mechanical equipment) and installation of corrugated structural plate drainage structures. This category is also applicable to de-watering projects, well drilling, slurry trench cut-off walls (soil-bentonite or cement-bentonite), and Drainage Cleaning.

EQUIPMENT REQUIRED: Trenching machine or backhoe loader or excavator.

CALCULATION OF WORK RATING: Secondary formula.

13 − DRAINAGE CLEANING

Consists of cleaning of pipe culverts, storm sewers and catch basins. This work can also be completed under the Drainage Category.

EQUIPMENT REQUIRED: Vacuum or jetting equipment.

CALCULATION OF WORK RATING: Secondary formula.

14 − ELECTRICAL

Consists of the installation of electric cable, duct and conduits, construction of trench and backfill for cables, ducts and conduits, traffic surveillance and control installations, traffic signal installations, installation of light pole, installation of light tower, installation of vapor luminaire, installation of sign lighting, installation of temporary lighting systems, installation of navigational lighting systems, installation of photocell relay service, installation of airport lighting systems, installation of airport beacon towers and airport rotating beacons, and other appropriate illumination systems. This category is also applicable to electronic weigh scale installations, installation and maintenance of motorist call box systems and installation of electrical controls/mechanical equipment for pump stations.

EQUIPMENT REQUIRED: Trenching machine or backhoe loader or excavator or aerial equipment.

CALCULATION OF WORK RATING: Secondary formula.

15 − COVER AND SEAL COATS (TYPE A)

Consists of the application of bituminous materials for priming, road oiling, cover coating and seal coating.

15 − COVER AND SEAL COATS (TYPE B)

Consists of sealing parking lots and driveways.

EQUIPMENT REQUIRED: Distributor (Type A).

CALCULATION OF WORK RATING: Primary or advanced formula.

Equipment

Equipment Factor (EqF)

Distributor (Type A)

$400,000 each

Tanker Truck* (Type A)

$50,000 each

A maximum of two tanker trucks per distributor will be allowed.

16 − SLURRY APPLICATIONS

Consists of slurry sealing and micro-surfacing.

EQUIPMENT REQUIRED: Slurry or micro-surfacing equipment.

CALCULATION OF WORK RATING: Secondary formula.

17 − CONCRETE CONSTRUCTION

Consists of masonry work or the construction of concrete barrier, curb, gutter, combination curb and gutter, sidewalk, driveway pavement, median, paved ditch, flumes, slope wall, retaining wall, railroad crossing, pavement, base course, base course widening and all types of pavement patching. This category also includes construction of revetment mats (cast-in-place concrete slabs), construction of foundations (light pole, light tower, etc.) and various undersealing projects that allow the voids to be filled by gravity flow. Removal of concrete that consists of any of the aforementioned items or similar items is applicable to this work rating. This category is also applicable to construction of box culverts and other similar miscellaneous drainage structures. The total of pavement, base course and base course widening cannot exceed 15,000 square yards in any one contract. This work can also be completed under the PCC Paving and Structures (Highways, Waterways) categories.

EQUIPMENT: Concrete saws, generators, vibrators, forms, tampers, screeds and concrete placement equipment.

CALCULATION OF WORK RATING: Secondary formula.

18 − LANDSCAPING

Consists of planting trees, shrubs, vines and other materials. This category also includes applying fertilizing nutrients, mulching, watering, pruning and selective removal of unwanted plants and Seeding and Sodding.

EQUIPMENT: Auger equipment or hoe, tillers, disks, slope harrows, hydraulic seeders, tractor drawn or mounted seeders, rangeland type grass drill, mulch blowers, tree spade and water trucks. Seed bed preparation and seeding equipment, a tractor loader and a water truck is the minimum equipment requirement.

CALCULATION OF WORK RATING: Secondary formula.

19 − SEEDING AND SODDING

Consists of seeding, sodding, applying fertilizer nutrients, mulching, watering, installation of excelsior blanket, fiber mat and other erosion work. This work can also be completed under the Landscaping category.

EQUIPMENT: Tillers, disks, slope harrows, hydraulic seeders, tractor drawn or mounted seeders, rangeland type grass drill, mulch blowers and water tankers. Seed bed preparation, seeding equipment and a tractor is the minimum equipment requirement.

CALCULATION OF WORK RATING: Secondary formula.

20 − VEGETATION SPRAYING

Consists of the application of chemicals to remove or control vegetation.

EQUIPMENT REQUIRED: Tanker truck with on- and off-road spraying equipment.

CALCULATION OF WORK RATING: Secondary formula. The contractor must have an Illinois Commercial Pesticide Applicator's license. Workers must have an Illinois Commercial Pesticide Operator's license issued by the Illinois Department of Agriculture.

21 − TREE TRIMMING AND SELECTIVE TREE REMOVAL

Consists of commercial arborist work such as trimming and thinning of trees, root pruning and removal of individual trees and tree stumps.

EQUIPMENT REQUIRED: Aerial equipment, brush chipper, pruning tools and stump grinder.

CALCULATION OF WORK RATING: Secondary formula.

22 − FENCING

Consists of constructing chain link fence, wire fence and wood fence. This category is also applicable to the installation of object markers, delineators and mile post markers. This work can also be completed under the Structural (Highway, Railroad) and Structures Repair categories.

EQUIPMENT: Post hole auger equipment needed for Fencing rating of $200,000 or more.

CALCULATION OF WORK RATING: Secondary formula.

23 − GUARDRAIL

Consists of constructing steel plate beam guardrail, wood guardrail, cable road guard, posts (including guard posts), pipe handrail and metal railings. Removal of any of the aforementioned items or similar items is applicable to this work category.

EQUIPMENT REQUIRED: Post hammer or post hole auger.

CALCULATION OF WORK RATING: Secondary formula.

24 − GROUTING

Consists of shotcrete construction, lime injection systems, clay grouting, chemical grouting, compaction grouting, cement grouting, jet grouting, asphalt grouting and bituminous or cement fly ash undersealing of concrete pavements. Applicable to soil stabilization and rehabilitation of dams, bridges, sewers, tanks, reservoirs, tunnels, culverts, walls, masonry structures, etc. This category is also applicable to mud jacking, slab jacking and various under-sealing projects.

EQUIPMENT REQUIRED: Air compressor, mixing equipment, agitator-type reservoir tank and grout pump.

CALCULATION OF WORK RATING: Secondary formula.

25 − PAINTING AND CLEANING

Consists of the cleaning, containment and painting of metal surfaces. This includes structural steel, sign structures, sign supports, traffic signal hardware, lighting hardware, etc. This category is also applicable to pressure washing.

EQUIPMENT REQUIRED: Air compressor, sandblast equipment, paint spraying equipment, and power washer.

CALCULATION OF WORK RATING: Secondary formula.

26 − SIGNING

Consists of installing, relocating, renovating, refurbishing and cleaning sign panels. This category also includes the installation and relocation of sign supports and sign structures, installation of object markers, installation of delineators and installation of mile post markers. Removal of any of the aforementioned items is also applicable to this work category. This work can also be completed under the Structures (Highway) and Structure Repair categories.

EQUIPMENT REQUIRED: Auger and aerial equipment. A crane will also meet minimum equipment requirements. Auger only will be limited to roadside signing.

CALCULATION OF WORK RATING: Secondary formula.

27 − PAVEMENT MARKINGS (PAINT)

Consists of the installation of paint pavement marking lines, letters and symbols.

EQUIPMENT REQUIRED: Truck mounted or hand operated painting equipment.

CALCULATION OF WORK RATING: Secondary formula.

27 − PAVEMENT MARKINGS (THERMOPLASTIC)

Consists of the installation of thermoplastic pavement marking lines, letters and symbols.

EQUIPMENT REQUIRED: Truck mounted or hand operated equipment that is approved by the Bureau of Operations within the Division of Highways.

CALCULATION OF WORK RATING: Secondary formula.

27 − PAVEMENT MARKINGS (EPOXY)

Consists of the installation of epoxy pavement marking lines, letters and symbols.

EQUIPMENT REQUIRED: Equipment that is approved by the Bureau of Operations within the Division of Highways.

CALCULATION OF WORK RATING: Secondary formula.

27 − PAVEMENT MARKINGS (POLYUREA)

Consists of the installation of polyurea pavement marking lines, letters and symbols.

EQUIPMENT REQUIRED: Equipment that is approved by the Bureau of Operations within the Division of Highways.

CALCULATION OF WORK RATING: Secondary formula.

27 − PAVEMENT MARKINGS (MODIFIED URETHANE)

Consists of the installation of modified urethane pavement marking lines, letters and symbols.

EQUIPMENT REQUIRED: Equipment that is approved by the Bureau of Operations within the Division of Highways.

CALCULATION OF WORK RATING: Secondary formula.

30 − INSTALLATION OF RAISED PAVEMENT MARKERS

Consists of the installation of raised reflective pavement markers and their removal.

EQUIPMENT REQUIRED: Plunge router or saw.

CALCULATION OF WORK RATING: Secondary formula.

31 − PAVEMENT TEXTURING AND SURFACE REMOVAL

Consists of grooving or grinding PCC pavement or continuously reinforced PCC pavement.

EQUIPMENT REQUIRED: Grooving or grinding equipment.

CALCULATION OF WORK RATING: Secondary formula.

32 − COLD MILLING, PLANING AND ROTOMILLING

Consists of bituminous surface removal or texturing bituminous pavements. Also applicable to pulverizing and mixing existing bituminous material.

EQUIPMENT REQUIRED: Milling, planing or grinding machine.

CALCULATION OF WORK RATING: Secondary formula.

33 − ERECTION

Consists of erecting structural steel or sign trusses. This work can be completed under the Structures (Highway, Railroad) category.

EQUIPMENT REQUIRED: Crane.

CALCULATION OF WORK RATING: Secondary formula.

34 − DEMOLITION

Consists of the removal of timber, steel and concrete structures and buildings. This work can be completed under the Structures (Highway, Railroad, Waterway) and Earthwork categories.

EQUIPMENT REQUIRED: Crane or excavator or front-end loader, backhoe loader or bulldozer.

CALCULATION OF WORK RATING: Secondary formula.

35 − FABRICATION

Consists of fabricating, delivering and storing structural steel.

EQUIPMENT REQUIRED: Fabrication plant.

CALCULATION OF WORK RATING: Secondary formula.

36 − TUNNEL EXCAVATION

Consists of earth and rock excavation for tunnels, and construction of liner plate shafts, steel sheeted shafts and wood sheeted shafts. This category also includes rock bolting and major boring and jacking of pipe-in-place.

EQUIPMENT REQUIRED: Tunnel boring machine.

CALCULATION OF WORK RATING: Secondary formula.

37 − EXPRESSWAY CLEANING

Consists of sweeping expressways and arterial routes.

EQUIPMENT REQUIRED: Motorized street sweeping equipment.

CALCULATION OF WORK RATING: Secondary formula.

38 − RAILROAD (TRACK) CONSTRUCTION

Consists of sub-ballast construction, ballast construction, installation of crossites and installation of steel rails.

EQUIPMENT REQUIRED: Ballast regulator, tamper and lifting equipment.

CALCULATION OF WORK RATING: Secondary formula.

39 − MARINE CONSTRUCTION

Consists of the construction of harbors and docking facilities on lakes or rivers. This includes breakwater structures, groins, jetties, seawalls, major revetments (riprap, interlocking concrete blocks and cast-in-place concrete slabs), bulkheads, piers, wharves, fenders and dolphins. This work category is also applicable to excavation for structures (includes cofferdams, temporary cribs, etc.), piling (all types), de-watering, mechanical dredging, underwater inspection and underwater repair.

EQUIPMENT REQUIRED: Barge and barge-mounted crane.

CALCULATION OF WORK RATING: Secondary formula.

40 − HYDRAULIC DREDGING

Dredging of various waterways by the use of pumping equipment.

EQUIPMENT REQUIRED: Barge and pumping equipment.

CALCULATION OF WORK RATING: Secondary formula.

41 − HOT (IN-PLACE) RECYCLING

A road construction technique that involves a single-pass or a two-pass operation that scarifies and rejuvenates the existing pavement material or combines existing pavement material with virgin material.

EQUIPMENT REQUIRED: Either a single recycle machine or a recycling train capable of heating, scarifying, remixing and relaying pavement material. Compaction equipment is also required.

CALCULATION OF WORK RATING: Secondary formula.

42 − COLD (IN-PLACE) RECYCLING

A road construction technique that reuses existing pavement material.

EQUIPMENT REQUIRED: Emulsion tanker truck, recycle machine, paver and compaction equipment.

CALCULATION OF WORK RATING: Secondary formula.

History

Source: Amended at 40 Ill. Reg. 7170, effective April 25, 2016

44 Ill. Adm. Code 650.APPENDIX B Request for Extension of Prequalification Ratings (repealed)

History

Source: Repealed at 32 Ill. Reg. 7989, effective May 8, 2008

44 Ill. Adm. Code 650.APPENDIX C Financial Pledge Letters (repealed)

History

Source: Repealed at 24 Ill. Reg. 18775, effective December 7, 2000

44 Ill. Adm. Code 650.APPENDIX D Financial Verification Letter (repealed)

History

Source: Repealed at 32 Ill. Reg. 7989, effective May 8, 2008

44 Ill. Adm. Code 650.APPENDIX E Corporate Resolution (repealed)

History

Source: Repealed at 24 Ill. Reg. 18775, effective December 7, 2000

Chapter X Department of Human Rights

Part 750 Procedures Applicable to All Agencies

44 Ill. Adm. Code 750.5 Definitions

Where used in this Part, unless the context otherwise clearly requires:

Act − the Illinois Human Rights Act [775 ILCS 5].

Construction Contract − any public contract as defined in this Section, for the rehabilitation, alteration, conversion, extension, landscaping, repair, maintenance or other improvements of buildings, highways or other real property.

Contracting Agency − any office, department, board, agency, commission, institution or other entity of the State or any of its political subdivisions or municipal corporations who may enter into any public contract.

Department − the Department of Human Rights.

Director − the Director of the Department or a duly authorized designee.

Eligible Bidder − the same meaning as in Section 2-101(J) of the Act.

Number − an Illinois Department of Human Rights Eligibility Number provided pursuant to Section 750.210 of this Part.

Person − an entity described in Section 1-103 of the Act.

Public Contract − any contract, purchase order, lease or other agreement or understanding, written or otherwise, between the State of Illinois or any of its political subdivisions or municipal corporations or any agent thereof and any other person for the procurement of any thing or service of value, such as, for example, any real or personal property, equipment, merchandise, goods, materials, labor or services for or by the State or political subdivision or municipal corporation. Public Contract further means any loan or grant by the State of Illinois or any of its political subdivisions or municipal corporations from which such a contract, purchase order, lease or other agreement or understanding may be financed in whole or in part.

Public Contractor − any person who bids for or who has been awarded a public contract by a contracting agency, either through a competitive bidding procedure or otherwise.

Subcontract − any agreement, arrangement or understanding, written or otherwise, between a public contractor and any person under which any portion of the public contractor's obligations under one or more public contracts is performed, undertaken or assumed. The term "subcontract", however, shall not include any agreement, arrangement or understanding in which the parties stand in the relationship of an employer and an employee, or between a bank or other financial institution and its customers.

Subcontractor − any person having a subcontract as defined in this Section.

History

Source: Amended at 32 Ill. Reg. 16484, effective September 23, 2008

44 Ill. Adm. Code 750.10 Clause to Be Included in All Contracts

Each contracting agency shall ensure that every contract to which it is a party shall contain the clause found in Appendix A.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.20 Incorporation by Operation of the Regulation

All contract specifications furnished by any contracting agency to bidders or contractors shall contain the Equal Employment Opportunity Clause set forth in Appendix A of this Part and such clause shall be included as a material term of any contract; however, a contracting agency having published rules and regulations which govern all its contracts and which include the Equal Employment Opportunity Clause may incorporate such clause by reference in such agency's individual contracts or contract specifications. By operation of this Part, the Equal Employment Opportunity Clause shall be deemed to be a part of every public contract whether or not such contract is in writing and regardless of whether said clause is physically incorporated therein.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.30 Subcontracts

Each public contractor and subcontractor shall in turn include the Equal Employment Opportunity Clause set forth in Appendix A of this Part in each of its subcontracts under which any portion of the contract obligations are undertaken or assumed, said inclusion to be either verbatim or by reference so that the provisions of the clause will be binding upon such subcontractors.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.40 Contracts or Subcontracts with Religious Entities

The requirements of the Equal Employment Opportunity Clause set forth in Appendix A hereof with respect to nondiscrimination because of religion shall not apply to a religious corporation, association, educational institution or society with respect to the employment of individuals of a particular religion for the carrying on by such corporation, association, educational institution or society of its activities.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.110 General

a) No public contractor or subcontractor shall discriminate or permit discrimination against any applicant for employment, or in the terms or conditions of employment of any employee, or in connection with any apprenticeship or other training program, because of race, color, religion, sex, marital status, order of protection status, national origin or ancestry, citizenship status, age, physical or mental disability unrelated to ability, sexual orientation, military status or unfavorable discharge from military service.

b) Each public contractor and subcontractor shall examine all its job classifications to determine if minority persons or women are underutilized in any classifications (see Section 750.120 of this Part). If underutilization exists in any job classification, the contractor or subcontractor shall take appropriate affirmative action to rectify any underutilization.

c) If a public contractor or subcontractor hires additional employees in order to perform any contract or portion of a contract, it will determine the availability (see Section 750.120 of this Part) of minorities and women in the areas from which it may reasonably recruit and will hire for each job classification in a way that minorities and women are not underutilized.

History

Source: Amended at 35 Ill. Reg. 3695, effective February 18, 2011

44 Ill. Adm. Code 750.120 Identification of Underutilization

a) Underutilization of minorities means having fewer minority workers in a particular job classification than would reasonably be expected by their availability. The availability of minority workers for any job classification shall be determined by the minority population percentages of the area(s) from which the public contractor or subcontractor may reasonably recruit and the unemployment rates of minorities as compared to unemployment rates of nonminorities in such area(s). In addition, the contractor or subcontractor shall consider in such recruitment area(s):

The size of the minority unemployment force;
The numbers of minorities having requisite skills;
The promotable and transferable minorities within the contractor's or subcontractor's organization;
The existence of training institutions capable of training persons in the requisite skills; and
The degree of training which the contractor or subcontractor is reasonably able to undertake as a means of making all job classifications available to minorities.

b) Underutilization of women means having fewer female workers in a particular job classification than would reasonably be expected by their availability. The availability of female workers for any job classification shall be determined by the numbers of women generally seeking employment in any such job classification and the unemployment rates of women as compared to unemployment rates of men in the area(s) from which the public contractor or subcontractor may reasonably recruit. In addition, the contractor or subcontractor shall consider in such recruitment area(s):

The size of the female unemployment force;
The numbers of women having requisite skills;
The promotable and transferable women within the contractor's or subcontractor's organization;
The existence of training institutions capable of training persons in the requisite skills; and
The degree of training which the contractor or subcontractor is reasonably able to undertake as a means of making all job classifications available to women.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.130 Affirmative Action Plans

a) When required pursuant to this Part, public contractors and subcontractors shall develop and implement written affirmative action plans, acceptable to the Department, to overcome underutilization of minority persons and/or women. An acceptable affirmative action plan shall include:

A description of the contractor's or subcontractor's workforce analysis made in accordance with Section 750.120 hereof; and
Goals and timetables to which the contractor's or subcontractor's recruitment, hiring or promotion efforts shall be directed to correct any identified underutilization.

b) In addition, an affirmative action plan may include a detailed description of positive steps taken or to be taken to overcome underutilization and to attain the established goals, such as for example:

The manner in which the contractor or subcontractor has disseminated its equal employment policy among employees and potential sources of minority and/or female applicants;
A thorough re-evaluation of current hiring and promotion criteria, techniques and procedures for relevant job classifications;
The contractor's or subcontractor's establishment of and involvement in training and/or apprenticeship programs to instruct minorities and/or women in skills necessary for employment and advancement; and/or
Utilization of minority and/or female subcontractors and commercial institutions.

c) Affirmative action plans developed pursuant to another governmental program may be accepted by the Department. Contractors or subcontractors found by the Department not to be underutilizing minorities or women according to Section 750.120 hereof shall not be required to develop an affirmative action plan.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.140 Information and Reports

Public contractors and subcontractors shall complete and file all appropriate reports as required under Subpart D of this Part and shall supply the Department, the appropriate contracting agency, or their staffs with such relevant information, reports, and documents and permit access to relevant books, records, facilities, operations and personnel, as may be required in order to determine compliance with the Act and this Part.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.150 Recruitment of Employees

In all solicitations or advertisements for employees placed by it or on its behalf, each public contractor and subcontractor shall state that all applicants will be afforded equal employment opportunity without discrimination because of race, color, religion, sex, marital status, national origin or ancestry, citizenship status, age, physical or mental disability unrelated to ability, sexual orientation, military status, order of protection status or unfavorable discharge from military service. Public contractors and subcontractors shall also advise in writing their personnel, their employee referral sources, and any labor organizations or representatives with which they have collective bargaining or other agreements or understandings of the public contractor's or subcontractor's obligations under the Act, this Part and any affirmative action plan. If any labor organization with which a public contractor or subcontractor has an exclusive hiring or referral arrangement fails or refuses to refer minority or female applicants to the public contractor or subcontractor in numbers sufficient for it to meet its obligations under this Part and any affirmative action plan, the public contractor or subcontractor shall solicit and employ minority or female applicants from other sources. It shall be no excuse that the labor organization with which the public contractor or subcontractor has such an agreement failed to refer sufficient minority or female employees.

History

Source: Amended at 37 Ill. Reg. 5706, effective July 1, 2013

44 Ill. Adm. Code 750.160 Segregated Facilities

Each public contractor and subcontractor shall provide facilities for employees at its place of business without segregation except where separate facilities for a person of the opposite sex are required. Each contractor and subcontractor shall further ensure, to the greatest extent possible, that employees are not assigned to work at any location where facilities are so segregated.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.170 Subcontracts

No public contractor shall, during the performance of any contract, enter into a subcontract with any person which has been debarred by the Commission from participating in public contracts or subcontracts. In the same manner as with other provisions of its contract, every contractor shall be liable for compliance with the applicable provisions of the Equal Employment Opportunity Clause by its subcontractors; and further, it shall promptly notify the Department and the appropriate contracting agency if any subcontractor fails or refuses to comply therewith.

History

Source: Amended at 5 Ill. Reg. 1627, effective February 9, 1981

44 Ill. Adm. Code 750.210 Eligibility for Public Contracts

a) DHR Registration Requirement

Duty to Register. Persons seeking to establish eligibility status to be awarded a contract by a State agency must register with the Department. The requirements of this Section shall apply to all persons employing 15 or more individuals at any time during the 365 day period immediately preceding the date of filing. No such employer shall be eligible to be awarded a contract by a State agency, as defined in the Illinois Procurement Code [30 ILCS 500/1-15.100], unless that employer has registered with the Department and holds a valid Illinois Department of Human Rights Eligibility Number. This registration with the Department must take place prior to bid opening, if a bidding or competitive selection procedure is required under the Illinois Procurement Code or, in all other cases, contract award.
How to Register. Persons may register by filing a properly completed DHR Employer Report Form (Form PC-1) with the Department and paying the registration fee, or by completing the on-line filing process available through the Department's website at www.Illinois.gov/dhr. Persons covered under this Section may obtain a DHR Employer Report Forms by writing to the Public Contracts Unit, Department of Human Rights, 100 W. Randolph Street, Suite 10-100, Chicago IL 60601, by accessing the Department's website at www.Illinois.gov/dhr, or by TTY at (866)740-3953. A DHR Employer Report Form shall be deemed filed when it is received in the Department's Chicago office, properly completed and signed, and the Department receives the $75 registration fee or when the applicant completes the Department's on-line filing process.
Registration Fee. A DHR Employer Report Form, whether it is a renewal or an initial filing, will not be deemed filed unless it is accompanied by a registration fee of $75. Persons registering by submitting a DHR Employer Report Form must submit payment with their DHR Employer Report Form, in the form of a certified check, money order or cashier's check payable to "Department of Human Rights", to the Department of Human Rights, ATTN: Fiscal Unit, 100 West Randolph Street, Suite 10-100, Chicago, Illinois 60601. Persons registering electronically through the Department's on-line filing process must make payment by Visa, MasterCard, Discover or American Express. Each DHR Employer Report Form containing a separate Federal Employer Identification Number (FEIN) shall be accompanied by a separate $75 fee. The Number or FEIN of the covered person filing the DHR Employer Report Form shall appear on the certified check, money order or cashier's check. The $75 fee is non-refundable.

b) Each person who registers pursuant to subsection (a) shall be issued a Number as evidence of its eligibility to bid on, or be awarded, public contracts. Each Number shall expire five years from the date of issue, without further notice to the employer. At any time prior to the expiration date, the Department may suspend or revoke the Number in accordance with the Act or this Part. The Number shall also expire upon dissolution, sale or merger of the public contractor or eligible bidder. Each person who has an expired Number and who files a completed form pursuant to subsection (a) will receive the same Number that the Department previously issued only if the form is filed within 365 days after expiration of the Number.

c) If the Department finds that a public contractor or eligible bidder is underutilizing minorities and/or women in any job classification, as defined in Section 750.120, it shall require the submission of an acceptable affirmative action plan.

After submitting an acceptable plan, the contractor or eligible bidder shall file such reports as the Department may require to document the contractor's progress under the plan. The Department may require that these reports contain information that includes, but is not limited to, the contractor's or eligible bidder's:

A) identification of underutilization (as required in Section 750.120);

B) hiring and promotional goals and timetables;

C) personnel policies and procedures;

D) personnel outreach and recruitment efforts;

E) personnel transactions (including hires, promotions, discharges, layoffs and disciplinary actions);

F) employee compensation and benefits;

G) sexual harassment prevention policies and procedures;

H) allegations of unlawful discrimination (as defined in Section 750.110(a)); and

I) compliance with any specific commitments made by the contractor or eligible bidder in its plan.

The Department may require a contractor or eligible bidder to file these reports until such time as the underutilization has been eliminated, but no more than quarterly.

d) A public contractor or eligible bidder may voluntarily relinquish its Number by so notifying the Department in writing addressed to the Department's Chicago office. Each public contractor or eligible bidder must notify the Department in writing of any change of address or other information necessary for the Department to readily contact it.

e) A public contractor or eligible bidder that cannot be located by the Department, does not respond to a written inquiry sent to its last known address, or does not respond to a notice published in the Illinois Procurement Bulletin (see 30 ILCS 500/15-1) and/or in other publications of general circulation may be deemed to have relinquished its Number.

f) A written request of a contracting agency for an exemption shall state the specific reasons for the exemption. The Department may exempt any person from the requirements of subsection (a) when it deems that exceptional circumstances and the public interest so require. An exemption shall be granted for a specified purpose and duration but may be withdrawn by the Department at any time; provided, however, that the withdrawal shall not apply to contracts awarded prior to the withdrawal.

g) The requirements of subsection (a) shall not apply to:

State agencies, boards and commissions required to file affirmative action plans with the Department pursuant to 56 Ill. Adm. Code 2520.710;
persons located wholly outside the territorial boundaries of the United States and who have no employees in the United States and will not hire employees in the United States to perform any part of any public contract;
procurements designated as small purchases pursuant to 30 ILCS 500/20-20;
procurements designated as sole-source pursuant to 30 ILCS 500/20-25; and
procurements designated as emergency pursuant to 30 ILCS 500/20-30.

History

Source: Amended at 37 Ill. Reg. 5706, effective July 1, 2013

44 Ill. Adm. Code 750.220 Construction Employee Utilization Projection

a) All bidders on construction contracts subject to the requirements of the Illinois Purchasing Act (Ill. Rev. Stat. ch. 127, pars. 132.1 et seq., as hereafter amended) shall complete and submit along with and as part of their bids, a Bidder's Employee Utilization Form – Construction (Form PC-2) setting forth a projection and breakdown of the total workforce intended to be hired and/or allocated to such contract work by the bidder including a projection of minority and female employee utilization in all job classifications on the contract project. A contracting agency may, however, with the approval of the Department, modify the Form PC-2 for use with some or all of its contracts without impairing compliance with this Section.

b) The contracting agency letting such a contract shall review the Employee Utilization Form, and workforce projections contained therein, of the contract awardee to determine if such projections reflect an underutilization of minority persons and/or women in any job classification in accordance with the Equal Employment Opportunity Clause and Section 750.120 of this Part. If it is determined that the contract awardee's projections reflect an underutilization of minority persons and/or women in any job classification, the agency shall confer and negotiate with the awardee to obtain satisfactory projections as a prerequisite to commencement of the contract work. The awardee may be required to develop an acceptable written affirmative action plan to correct such underutilization including a specific timetable geared to the completion stages of the contract.

c) The contracting agency shall provide to the Department a copy of the contract awardee's Employee Utilization Form, including any revisions as may be negotiated by the agency and a copy of any required written affirmative action plan. The Department may review and revise any action taken by the contracting agency with respect to the requirements of this Section; provided that the Department may from time to time enter into agreements with individual contracting agencies whose compliance programs meet with its approval whereby utilization projections accepted by such agencies shall be accorded substantial weight by the Department. A contractor's utilization projections approved under this Section shall constitute goals which the contractor shall make all good faith efforts to achieve, but such goals may be subject to later revision among the parties to reflect fluctuations in the available minority and female labor forces.

d) Upon the written request of a contracting agency, which request shall state the reasons therefor, the Department may exempt any person from the requirements of subsection (a) of this Section when it deems that exceptional circumstances and the public interest so require. Such exemption shall be granted for a specified purpose and duration but may be withdrawn by the Department at any time; provided however, that such withdrawal of exemption shall not apply to contracts awarded prior to the withdrawal.

44 Ill. Adm. Code 750.230 Compliance Review; Enforcement

Representatives of the Department and/or the contracting agency may periodically request information from and/or visit any facilities or operations of a public contractor or subcontractor to determine compliance with the Act and this Part. In addition the Department may order any contracting agency to conduct a compliance review of any person engaged as a contractor or subcontractor on a project supervised by such agency. The Department may from time to time enter into agreements with individual contracting agencies whose compliance programs meet with its approval whereby the findings and conclusions of compliance reviews conducted by such agencies shall be accorded substantial weight by the Department. If the Department believes that a public contractor, subcontractor or eligible bidder has committed or is committing a civil rights violation, the Director may initiate a charge alleging such violation pursuant to Section 7-102(A) of the Act and seek such sanctions as are authorized under Sections 8-108 and 8-109 of the Act.

44 Ill. Adm. Code 750.APPENDIX A Equal Employment Opportunity Clause

EQUAL EMPLOYMENT OPPORTUNITY

In the event of the contractor's non-compliance with the provisions of this Equal Employment Opportunity Clause or the Act, the contractor may be declared ineligible for future contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations, and the contract may be cancelled or voided in whole or in part, and other sanctions or penalties may be imposed or remedies invoked as provided by statute or regulation. During the performance of this contract, the contractor agrees as follows:

That he or she will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, marital status, order of protection status, national origin or ancestry, citizenship status, age, physical or mental disability unrelated to ability, military status or an unfavorable discharge from military service; and, further, that he or she will examine all job classifications to determine if minority persons or women are underutilized and will take appropriate affirmative action to rectify any underutilization.
That, if he or she hires additional employees in order to perform this contract or any portion of this contract, he or she will determine the availability (in accordance with this Part) of minorities and women in the areas from which he or she may reasonably recruit and he or she will hire for each job classification for which employees are hired in a way that minorities and women are not underutilized.
That, in all solicitations or advertisements for employees placed by him or her or on his or her behalf, he or she will state that all applicants will be afforded equal opportunity without discrimination because of race, color, religion, sex, sexual orientation, marital status, order of protection status, national origin or ancestry, citizenship status, age, physical or mental disability unrelated to ability, military status or an unfavorable discharge from military service.
That he or she will send to each labor organization or representative of workers with which he or she has or is bound by a collective bargaining or other agreement or understanding, a notice advising the labor organization or representative of the contractor's obligations under the Act and this Part. If any labor organization or representative fails or refuses to cooperate with the contractor in his or her efforts to comply with the Act and this Part, the contractor will promptly notify the Department and the contracting agency and will recruit employees from other sources when necessary to fulfill its obligations under the contract.
That he or she will submit reports as required by this Part, furnish all relevant information as may from time to time be requested by the Department or the contracting agency, and in all respects comply with the Act and this Part.
That he or she will permit access to all relevant books, records, accounts and work sites by personnel of the contracting agency and the Department for purposes of investigation to ascertain compliance with the Act and the Department's Rules and Regulations.
That he or she will include verbatim or by reference the provisions of this clause in every subcontract awarded under which any portion of the contract obligations are undertaken or assumed, so that the provisions will be binding upon the subcontractor. In the same manner as with other provisions of this contract, the contractor will be liable for compliance with applicable provisions of this clause by subcontractors; and further it will promptly notify the contracting agency and the Department in the event any subcontractor fails or refuses to comply with the provisions. In addition, the contractor will not utilize any subcontractor declared by the Illinois Human Rights Commission to be ineligible for contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations.

History

Source: Amended at 35 Ill. Reg. 3695, effective February 18, 2011

Chapter XII Capital Development Board

Part 930 Capital Development Board Procurement Practices for the Quincy Veterans' Home

44 Ill. Adm. Code 930.100 Purpose and Scope

a) This Part is established to implement procedures for the solicitation and award of contracts pursuant to the Quincy Veterans' Home Rehabilitation and Rebuilding Act [330 ILCS 21] and for the application of the Illinois Procurement Code [30 ILCS 500/1-35] to contracts subject to the Act.

b) This Part applies to contracts for construction and construction-related services directly related to the renovation, restoration, rehabilitation, or rebuilding of the Quincy Veterans' Home solicited and awarded after the effective date of the Act.

44 Ill. Adm. Code 930.110 Definitions

The following definitions shall apply to this Part:

"Act" – The Quincy Veterans' Home Rehabilitation and Rebuilding Act [330 ILCS 21].

"Architect/Engineer" or "A/E" − An architectural or engineering firm that is in the business of offering the practice of furnishing architectural services, engineering services, or land surveying services, as those services are defined in the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535/15].

"Bid" − An offer made by a bidder in response to a contract item advertised in an invitation for bids.

"Board" – The seven-member Board of the Capital Development Board.

"CDB" − Capital Development Board, the agency.

"Change Order" − A formal, written directive or agreement that amends a contract in order to address contingencies affecting the performance and completion of the contract, including, but not limited to, such matters as extra work, increases or decreases in quantities or time; additions or alterations to plans, special provisions or specifications; and adjustments or alterations not specifically provided for in the contract. Change orders to A/E contracts may be referred to as "modifications".

"Chief Procurement Officer" or "CPO" – The Executive Director of the Capital Development Board, who shall review and approve procurements subject to the Act to confirm compliance with this Part and Section 1-35 of the Code [30 ILCS 500/1-35].

"Code" − The Illinois Procurement Code [30 ILCS 500].

"Construction" – Services directly related to renovation, restoration, rehabilitation, rebuilding, or demolition at the Quincy Veterans' Home. Construction does not include the routine operation, routine repair, or routine maintenance of existing structures, buildings, or real property.

"Construction Manager" or "CM" − Any individual, sole proprietorship, firm, partnership, corporation, or other legal entity providing construction management services for CDB.

"Construction-Related Services" – Services concerning construction or potential construction at the Quincy Veterans' Home, including construction design, layout, inspection, support, feasibility or location study, research, development, planning, or other investigative study.

"Contract" − A written agreement between CDB and a vendor comprised of such documents as set forth in each individual agreement, including change orders, and setting forth the obligations of the parties for the performance of the contract.

"Design-bid-build" – The traditional delivery system used on public projects in this State that incorporates the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act and the principles of competitive selection in the Illinois Procurement Code, subject to the provisions of Section 1-35 of the Code. [330 ILCS 21/10].

"Design-Build" – A delivery system that provides responsibility within a single contract for the furnishing of architecture, engineering, land surveying and related services as required, and the labor, materials, equipment, and other construction services for the project. [330 ILCS 21/10].

"Executive Director" – The Director of the Capital Development Board.

"Germane" − In relationship to the modification, alteration or amendment of the terms of a contract by change order, the term "germane" means a change that is related to the original terms of the contract and that is not so substantial a departure from the original as to constitute a new contract.

"IDVA" – The Illinois Department of Veterans' Affairs.

"Prequalification" – The status granted by CDB to responsible vendors that permits them to make submittals, offers, or bids on CDB projects; or be awarded a CDB contract.

"Responsible" − The capability, integrity and reliability of a vendor, in all respects that will assure good faith performance, to undertake and complete fully the requirements of a contract.

"Single Prime" – The design-bid-build procurement delivery method for a construction project procuring two or more subdivisions of work under a single contract.

"Single Trade" − The design-bid-build procurement delivery method for a construction project procuring one subdivision of work under a single contract.

"Specifications" − The contractual body of directions, provisions, and requirements for performance of prescribed work. Specifications may include the Standard Documents for Construction for general application and repetitive use, as well as specifications applicable to a specific project.

"Statement of Qualifications" – The information supplied by an A/E or construction manager that cites the specific experience and expertise that may qualify the A/E or construction manager to provide the services requested.

"Subcontract" – A contract between a subcontractor and a vendor who has a contract subject to the Act, pursuant to which the subcontractor assumes obligation for performing specific work under the contract. For purposes of this Part, a subcontract does not include purchases of goods, materials, or supplies that are necessary for the performance of a contract by a vendor who has a contract subject to the Act.

"Subcontractor" – A person or entity that enters into a contractual agreement with a total value of $50,000 or more with a vendor who has a contract subject to the Act pursuant to which the person or entity agrees to perform specific work under the contract. For purposes of this Part, a person or entity is not a subcontractor if that person or entity only provides goods, materials, or supplies that are necessary for the performance of a contract by a vendor who has a contract subject to the Act.

44 Ill. Adm. Code 930.120 Procurement Authority

The Executive Director is established as the Chief Procurement Officer for procurements of construction and construction-related services listed in Subpart B, subject to the Act and Section 1-35 of the Code [30 ILCS 500/1-35], and committed by law to the jurisdiction or responsibility of CDB. The Executive Director may appoint a designee to carry out any or all of the procurement functions.

44 Ill. Adm. Code 930.130 Procurement Code

a) The Procurement Code shall not apply to procurements subject to the Act, except substantial compliance with the following Sections of the Procurement Code is required:

Section 20-160: Business Entities; Certification; Registration with the State Board of Elections.
Section 25-60: Prevailing Wage Requirements.
Section 30-22: Construction Contracts; Responsible Bidder Requirements.
Section 50-5: Bribery.
Section 50-10: Felons.
Section 50-10.5: Prohibited Bidders and Contractors.
Section 50-12: Collection and Remittance of Illinois Use Tax.
Section 50-13: Conflicts of Interest.
Section 50-15: Negotiations.
Section 50-20: Exemptions.
Section 50-21: Bond Issuances.
Section 50-35: Financial Disclosure and Potential Conflicts of Interest. Substantial compliance with this Section shall only apply to contracts and subcontracts over $100,000.
Section 50-36: Disclosure of Business in Iran.
Section 50-37: Prohibition of Political Contributions.
Section 50-38: Lobbying Restrictions.
Section 50-50: Insider Information.

b) The CPO shall determine substantial compliance with the Code Sections listed in subsection (a).

c) General conditions for procurements shall be set forth in in this Part and in CDB's contract documents, which include the Standard Documents for Construction if applicable as determined by CDB.

44 Ill. Adm. Code 930.200 Procurement Methods

CDB shall procure construction and construction-related services for contracts subject to the Act using the selection method determined by the CPO to be the most appropriate to the circumstances, as follows:

a) Design-Build Contracts.

b) Competitive Contracts.

c) Design Services Contracts.

d) Construction Management Services Contracts.

e) Emergency Contracts.

f) Small Purchase Contracts.

g) Sole Source and Limited Source Contracts.

h) Professional Services Contracts.

i) Contracts with Illinois Correctional Industries.

j) Other procurement delivery methods determined by the CPO to be in the best interest of the State.

44 Ill. Adm. Code 930.205 Procurement Procedures for Design-Build Contracts

Procurement of construction and construction-related services pursuant to the design-build delivery method shall be in accordance with the Act and CDB's rules titled Selection of Design-Build Entities (44 Ill. Adm. Code 1030), with the following amendments to that Part:

a) For purposes of this Part, Section 1030.160(b)(2) regarding public members on the selection committee shall not be followed. Instead, public members on the selection committee shall be comprised of one public member that is a resident of the Quincy Veterans' Home and one public member that is a resident of the City of Quincy.

b) For purposes of this Part, references to the "Act" in 44 Ill. Adm. Code 1030 shall refer to the Act.

44 Ill. Adm. Code 930.210 Procurement Procedures for Competitive Bid Contracts

a) Procurement of construction and construction-related services pursuant to the design-bid-build procurement method shall be limited to single prime or single trade contracts. Competitive bid contracts may also include direct purchase contracts. Solicitations for bids shall be in conformance with the rules of CDB and with accepted business practices. Contracts shall be awarded in accordance with those authorities and with the guidelines set forth in Standard Documents for Construction unless otherwise specified in the advertisement for bids published in the Procurement Bulletin, the project specifications, or as authorized by law.

b) For single prime contracts, the following procedures shall apply:

the bid of the successful low bidder shall identify the name of the subcontractor, if any, and the bid proposal costs for each of the subdivisions of work set forth in the project specifications;
the contract entered into with the successful bidder shall provide that no identified subcontractor may be terminated without the written consent of CDB; and
the contract shall comply with the disadvantaged business practices of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575] and the equal employment practices of Section 2-105 of the Illinois Human Rights Act [775 ILCS 5].

c) For purposes of this Part, a direct purchase contract is a contract between CDB and a supplier or manufacturer for materials or equipment necessary for a CDB project at the Quincy Veterans' Home.

44 Ill. Adm. Code 930.215 Procurement Procedures for Design Services Contracts

Solicitation for procurement of services of architects/engineers, or related professionals, shall be in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and CDB's rules titled Selection of Architects/Engineers (44 Ill. Adm. Code 1000), with the following modification to that Part:

For purposes of this Part, Section 1000.160 regarding interviews shall not apply. Instead, the following shall apply:

CDB requires the selection committee to conduct interviews when the estimated value of the basic services fee exceeds $300,000. The Executive Director may choose to conduct interviews for smaller projects under special circumstances. A minimum of three firms will be interviewed, unless fewer than three qualified firms submit statements of qualifications for a specific project. The Executive Director may exempt any contract from requiring interviews.

44 Ill. Adm. Code 930.220 Procurement Procedures for Construction Management Services Contracts

a) Construction management services may include, but are not limited to, the following:

services provided in the planning and pre-construction phases of a construction project, including, but not limited to, consulting with, advising, assisting, and making recommendations to CDB and the architect, engineer, or licensed land surveyor on all aspects of planning for project construction; reviewing all plans and specifications as they are being developed and making recommendations with respect to construction feasibility, availability of material and labor, time requirements for procurement and construction, and projected costs; making, reviewing, and refining budget estimates based on CDB's program and other available information; soliciting the interest of capable contractors and analyzing the bids received; and preparing and maintaining a progress schedule during the design phase of the project and preparation of a proposed construction schedule; and
services provided in the construction phase of the project, including, but not limited to, maintaining competent supervisory staff to coordinate and provide general direction of the work and progress of the contractors on the project; directing the work as it is being performed for general conformance with working drawings and specifications; establishing procedures for coordinating among CDB, the A/E, contractors, and the construction manager with respect to all aspects of the project and implementing those procedures; maintaining job site records and making appropriate progress reports; implementing labor policy in conformance with the requirements of the public owner; reviewing the safety and equal opportunity programs of each contractor for conformance with the public owner's policy and making recommendations; reviewing and processing all applications for payment by involved contractors and material suppliers in accordance with the terms of the contract; making recommendations and processing requests for changes in the work and maintaining records of change orders; scheduling and conducting job meetings to ensure orderly progress of the work; developing and monitoring a project progress schedule, coordinating and expediting the work of all contractors and providing periodic status reports to the owner and the A/E; and establishing and maintaining a cost control system and conducting meetings to review costs.

b) Public Notice. Whenever a project requiring construction management services is proposed for IDVA, CDB shall provide no less than a 14 calendar day advance notice published in a request for qualifications setting forth the projects and a description of the services to be procured, unless a different timeframe for providing advance notice is otherwise specified by CDB. Notice shall be published in CDB's Procurement Bulletin. The request for qualifications shall include a description of each project and shall also include the statement of qualifications form to be completed for each project. The public notice shall state the time and place for interested firms to submit a statement of qualifications. When CDB establishes additional criteria for a special project under 44 Ill. Adm. Code 990.140 (Prequalification of Construction Managers), the notice shall be published at least 30 calendar days before the date the special prequalification application or the statement of qualifications is due.

c) Submittal Requirements. The statement of qualifications submittal shall include the names of persons who will perform the services, including their project assignment or duties, as well as a resume of the experience and expertise that qualifies them to perform the assignment.

d) Selection Committee. The Executive Director shall appoint an agency employee to serve as chair of a selection committee. The selection committee chairman shall appoint a committee to recommend to the Executive Director and the Board a list of CMs qualified to perform the required services. This committee may be established for each selection and may be composed of standing members and rotating members from CDB staff. In addition to the CDB staff members, a representative from IDVA and one or more public members may be requested to be members of the committee.

e) Preliminary Evaluations. CDB may appoint staff members to perform a preliminary evaluation (prescreening) to provide a preliminary ranking of the CMs for the committee's consideration. This prescreening shall consider, among others, the relevant project experience of the prospective CMs and the expertise and experience of the firm and its staff to be assigned to the project if the firm is selected.

f) Evaluation Procedure

The selection committee shall evaluate the CMs submitting statements of qualifications, and the selection committee may consider, but shall not be limited to, the following: ability of personnel; past record and experience; performance data on file, determined by review of the CM Performance Evaluations on previous CM projects, Performance Evaluations of the CM firm on projects in which it participated as an A/E or contractor, and any other related material; willingness to meet time requirements; location of the project relative to the firm's place of business; the results of preliminary evaluations performed by CDB staff; current workload of the CM and their prior selections by CDB; references; interviews conducted with the CMs; minority, women, and veteran participation; and any other qualifications-based factors as CDB may determine in writing are applicable. The selection committee may conduct discussions with and require presentations by CMs deemed to be the most qualified regarding their qualifications, approach to the project, and ability to furnish the required services.
Before beginning review of the CM's statements of qualifications, the committee shall prepare a table of the factors the CMs will be rated on and the weight to be assigned to each factor. The table of factors, and the scores of each reviewed submittal, will be kept on file for no less than two years from the date of the selection.
In no case shall the Board, CDB, or the selection committee, prior to selecting a CM for negotiation, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation.

g) Interviews. CDB requires the selection committee to conduct interviews when the estimated value of the CM's basic services fee exceeds $300,000. The Executive Director may choose to conduct interviews for smaller projects under special circumstances. A minimum of three firms will be interviewed, unless fewer than three qualified CMs submit statements of qualifications for a specific project. The Executive Director may exempt any contract from requiring interviews.

h) Selection Procedure. On the basis of evaluations, discussions, and any presentations, the selection committee shall select no less than 3 firms it determines to be qualified to provide services for the project and rank them in order of qualifications to provide services regarding the specific project. If fewer than 3 firms submit statements of qualifications and the selection committee determines that one or both of those firms are so qualified, the CDB may proceed with the selection process. Board approval of these CMs shall be final and binding.

i) Contract Negotiation

CDB shall prepare a written description of the scope of the proposed services to be used as a basis for negotiations and shall negotiate a contract with the highest ranked construction management firm at compensation that CDB determines in writing to be fair and reasonable. In making this decision, CDB shall take into account the estimated value, scope, complexity, and nature of the services to be rendered. In no case may CDB establish a payment formula designed to eliminate firms from contention or restrict competition or negotiation of fees.
If CDB is unable to negotiate a satisfactory contract with the firm that is highest ranked, negotiations with that firm shall be terminated. CDB shall then begin negotiations with the firm that is next highest ranked. If CDB is unable to negotiate a satisfactory contract with that firm, negotiations with that firm shall be terminated. CDB shall then begin negotiations with the firm that is next highest ranked.
If CDB is unable to negotiate a satisfactory contract with any of the selected firms, CDB shall re-evaluate the construction management services requested, including the estimated value, scope, complexity, and fee requirements. The selection committee shall then compile a list of no fewer than 3 prequalified firms, if available, and proceed in accordance with the provisions of this Part.

j) Prohibited Conduct

No construction management services contract may be awarded by the Board on a negotiated basis as provided in this Part if the CM or an entity that controls, is controlled by, or shares common ownership or control with the CM:

A) guarantees, warrants, or otherwise assumes financial responsibility for the work of others on the project;

B) provides CDB with a guaranteed maximum price for the work of others on the project; or

C) furnishes or guarantees a performance or payment bond for other contractors on the project.

In any such case, the contract for construction management services must be let by competitive bidding as in the case of contracts for construction work.

k) Procurement Limitations

A CM cannot participate in a selection process if:

A) it or a substantially affiliated firm is under contract, or in the process of contracting, with CDB for other goods or services required for the project; and

B) the CM's duties will involve or relate to those goods or services.

A CM selected to provide construction management services, or a substantially affiliated firm, may not bid on or otherwise be awarded a construction contract for the project.
Notwithstanding the provisions of subsection (k)(1) and (2), when it is determined in writing by the Executive Director to be in the State's best interest, the CM may provide or perform, directly or through unrelated contractors, basic services for which reimbursement is provided in the general conditions of the CM contract, or any other goods or services that do not conflict with or give the appearance of conflicting with the CM's duties.
A firm is substantially affiliated if any one or more of the individuals with more than 5% ownership interest and/or any officer or director of the CM firm and/or any individual authorized to sign bids, proposals or contracts for the CM firm owns or controls more than 5% of the affiliated firm and/or holds any of the above positions with the affiliated firm, or the affiliated firm shares more than 5% common ownership with the CM.

l) Publication of Award. The names of selected firms and the respective projects shall be published in CDB's Procurement Bulletin within 30 calendar days after the selection and award.

44 Ill. Adm. Code 930.225 Procurement Procedures for Emergency Contracts

a) A contract may be procured without the use of any other method of procurement prescribed in this Part when there exists a threat to public health or safety; when an immediate contract is needed to repair State property in order to prevent or minimize loss or damage to State property; to prevent or minimize serious disruption in State services, including but not limited to, completion of a defaulted contract; or to ensure the integrity of State records.

b) For purposes of determining whether an emergency exists to prevent or minimize serious disruption in State services, State services include, but are not limited to, all activities committed by law to the jurisdiction or responsibility of CDB and IDVA, whether provided directly or indirectly by means of contract or intergovernmental agreement.

c) CDB will employ such competition as is practical under the emergency circumstances to abate the emergency situation. The use of existing contracts is allowed.

d) A written description of the basis for the emergency and reasons for the selection of the particular vendor shall be included in the contract file. CDB shall file a statement with the Auditor General within 10 calendar days after the procurement setting forth the amount expended, the name of the contractor involved, and the conditions and circumstances requiring the emergency procurement. When only an estimate of the cost is available within 10 calendar days after the procurement, the actual cost shall be reported immediately after it is determined. CDB shall post the statement in the CDB Procurement Bulletin.

44 Ill. Adm. Code 930.230 Procurement Procedures for Small Purchase Contracts

a) Individual contracts not exceeding the following thresholds may be made without notice, competition or use of other method of procurement prescribed in this Part:

construction contracts not exceeding $100,000;
design services contracts with an estimated basic professional services fee of less than $25,000;
construction management services contracts with an estimated basic professional services fee of less than $100,000; and
any other contract determined by the CPO to be related to the renovation, restoration, rehabilitation, or rebuilding of the Quincy Veterans' Home, not exceeding $100,000.

b) Estimated needs shall not be artificially divided to constitute a small purchase.

44 Ill. Adm. Code 930.235 Procurement Procedures for Sole Source and Limited Source Contracts

a) A contract may be procured from a single source contractor without competition or use of any other method of procurement prescribed in this Part when the single source contract is the only economically feasible source capable of providing the services, material or product to be supplied or if determined by the Chief Procurement Officer to be in the best interest of the State.

b) Examples of circumstances that could necessitate sole source procurement include, but are not limited, to:

when the compatibility of equipment, accessories, replacement parts, or service is a primary consideration;
when trial use, testing or the development of new technology is the object of the procurement;
when a sole supplier's item is to be procured for resale;
when utility services are to be procured;
when the surety providing a performance bond tenders a completion contractor, acceptable to the CDB, to complete a defaulted contract;
when the item is copyrighted or patented and the item is not available except from the holder of the copyright or patent or service area licensee;
when a utility or other private property is to be relocated or otherwise adjusted by the owner to accommodate a CDB project; and
when determined by the CPO to be in the best interest of the State to expedite procurement.

c) Change Orders. Change orders to existing contracts germane to the original contract that are necessary or desirable to complete the project, and that can be best accomplished by the contract holder, may be procured under this Section.

d) Bulletin. CDB shall publish notice of intent to contract on a sole source basis in the CDB Procurement Bulletin at least 5 business days prior to execution of the contract.

44 Ill. Adm. Code 930.240 Procurement Procedures for Professional Services Contracts

a) Application. The provisions of this Section apply to the procurement of professional services not otherwise referenced in this Part necessary to support CDB projects at the Quincy Veterans' Home. When the procurement does not lend itself to the request for proposal selection process outlined in this Section, the CPO may grant a waiver to the selection process and direct CDB to use an alternative method of selection.

b) Public Notice. Whenever a project requiring professional services is proposed, CDB shall provide no less than 14 calendar days' advance notice published in a request for proposals setting forth a description of the services to be procured, unless a different timeframe for providing advance notice is otherwise specified by CDB. The request for proposals shall include the type of services required, a description of the work involved, an estimate of when and for how long the services will be required, a date by which proposals for the performance of the services shall be submitted, a statement of the minimum information that the proposal shall contain, price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package), the factors to be used in the evaluation and selection process and their relative importance, and a plan for post-performance review to be conducted by CDB after completion of services and before final payment and made part of the procurement file.

c) Evaluation. Proposals shall be evaluated only on the basis of evaluation factors stated in the request for proposals. Price will not be evaluated until ranking of all proposals and identification of the most qualified vendor. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum factors are:

the plan for performing the required services;
ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services, and the qualifications and abilities of personnel proposed to be assigned to perform the services;
the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and
a record of past performance of similar work.

d) Handling of Proposals

Proposals and modifications shall be submitted to CDB and shall be opened publicly at the time, date and place designated in the request for proposals.
Opening shall be witnessed by a State witness or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that shall include the name of each offeror and a description sufficient to identify the supply or service item offered. The record of proposals shall be open to public inspection after award of the contract.
Proposals and modifications shall be opened in a manner designed to avoid disclosing contents to competitors. Only State personnel and contractual agents authorized by CDB may review the proposals prior to award.

e) Discussions

Discussions Permissible. CDB may conduct discussions with any offeror to:

A) determine in greater detail the offeror's qualifications; and

B) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach. The CPO may allow changes to the proposal based on those discussions.

No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors. CDB staff conducting the procurement shall not disclose any information contained in any proposals outside of contractual agents, State agency personnel or others specifically authorized by the CPO until after the award of the proposed contract has been posted to CDB's Procurement Bulletin.

f) Selection of the Best Qualified Offerors. After conclusion of validation of qualifications, evaluation and discussion, CDB shall rank the acceptable offerors in the order of their respective qualifications.

g) Evaluation of Pricing Data. Pricing submitted for all acceptable proposals timely submitted shall be opened and ranked.

If the low price is submitted by the most qualified vendor, the CPO may award to that vendor.
If the price of the most qualified vendor is not low and if it does not exceed $25,000, the CPO may award to that vendor.
If the price of the best qualified vendor exceeds $25,000, the CPO must state why a vendor other than the low priced vendor was selected and that determination shall be published in CDB's Procurement Bulletin.

h) Negotiation and Award of Contract

General. CDB shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. CDB, in consultation with the CPO, may, in the interest of efficiency, negotiate with the next highest ranked vendor, while negotiating with the best qualified vendor.
Elements of Negotiation. At a minimum, contract negotiations shall be directed toward:

A) making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

B) determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services and the scope, complexity, and nature of those services.

Successful Negotiation of Contract with Best Qualified Offeror

A) If compensation, contract requirements and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is canceled.

B) Compensation must be determined in writing to be fair and reasonable. Fair and reasonable compensation shall be determined by CDB, in consultation with the CPO, based on the circumstances of the particular procurement, including but not limited to the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, other available pricing information, and CDB's identified budget.

C) Contracts entered into under this Section shall provide:

i) the duration of the contract, with a schedule for delivery when applicable;

ii) the method for charging and measuring cost (hourly, per day, etc.);

iii) the rate of remuneration; and

iv) the maximum price.

Failure to Successfully Negotiate Contract with Best Qualified Offeror

A) If compensation, contract requirements or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons shall be placed in the file. CDB, in consultation with the CPO, shall advise that offeror of the termination of negotiations.

B) Upon failure to successfully negotiate a contract with the best qualified offeror, CDB, in consultation with the CPO, may enter into negotiations with the next most qualified offeror.

i) Multiple Awards. CDB, in consultation with the CPO, may enter into negotiations with the next most qualified vendor or vendors when CDB has a need that requires multiple vendors under contract.

j) Publication of Award. The names of the selected vendors and the respective projects shall be published in CDB's Procurement Bulletin within 30 calendar days after the selection and award.

44 Ill. Adm. Code 930.245 Procurement Procedures for Contracts with Illinois Correctional Industries

Procurements from Illinois Correctional Industries may utilize an annual master contract with agreed-upon unit prices for construction services, against which sub-orders may be placed for specific CDB projects. Specifications that require a vendor to obtain materials or services from another source shall identify at least three sources for the material or services, unless the CPO approves a specification with only one or two sources.

44 Ill. Adm. Code 930.250 Procurement Procedures for Other Procurement Delivery Methods

In addition to the procurement delivery methods provided in this Part, CDB may explore and implement other procurement delivery methods recognized by the construction industry for CDB projects at the Quincy Veterans' Home, subject to CPO approval, and when determined by the CPO to be in the best interest of the State.

44 Ill. Adm. Code 930.300 Procurement Bulletin

CDB is responsible for publishing a volume of the Illinois Procurement Bulletin. CDB's bulletin is available electronically via the Internet (www.illinois.gov/cdb) and may be available in print. CDB's Procurement Bulletin may include one part entitled "Bid Information Newsletter" for construction contracts and another part entitled "Professional Services Bulletin" for architect/engineer and construction management services.

44 Ill. Adm. Code 930.310 Agreement to Terms

By submitting a bid, offer, statement of qualifications, or any other response for the purpose of entering into a contract with CDB, the vendor agrees to all terms and conditions of CDB's Standard Documents for Construction, if applicable as determined by CDB, and all other contract documents as identified by CDB. Accordingly, submittal of conditions or qualifying statements on contract documents is unacceptable and cause for rejection of the vendor.

44 Ill. Adm. Code 930.320 Minority, Women, and Veteran Participation

CDB shall establish goals for minority, women, and veteran work force participation and minority and women business enterprise participation as permitted by law and as provided in this Section. In addition, CDB shall establish goals for qualified veteran-owned small business participation as provided in this Section. Participation goals shall be established on all contracts, except CDB shall have discretion whether to establish goals for contracts under $250,000, single trade contracts, or specialized skill contracts. If goals are not established, the CPO shall state the reason in writing in a document that shall be maintained in the contract file. Compliance with this Section shall be in accordance with CDB's Standard Documents for Construction.

44 Ill. Adm. Code 930.330 Prequalification

All vendors on projects pursuant to this Part, including identified subcontractors in projects utilizing the single prime design-bid-build procurement method, shall be prequalified in accordance with 44 Ill. Adm. Code 950, 980, 990 and 995 unless the CPO determines, in writing, that a vendor without prequalification should be awarded a contract if it is in the best interests of the State.

44 Ill. Adm. Code 930.340 Protests

The procedures of this Section govern the resolution of protests, received by CDB from an interested party, concerning a contract solicitation.

a) Interested Party

b) Subject of the Protest

A protest may be filed regarding any phase of the solicitation process for a particular contract.
The subject of the protest shall concern fraud, corruption or illegal acts undermining the objectives and integrity of the procurement process.
Protest procedures of this Section do not apply to issues of prequalification, suspension or debarment.

c) Filing of a Protest

All protests shall be in writing and filed with the Chief Procurement Officer within 7 calendar days after the protester knows or should have known of the facts giving rise to the protest. Protests filed after the 7 calendar day period will not be considered. In addition, protests that raise issues of fraud, corruption or illegal acts affecting specifications, special provisions, supplemental specifications and plans must be received by the CPO no later than 14 calendar days before the date set for opening of bids.
The protest shall be contained in an envelope clearly labeled "Protest". The written protest shall include as a minimum the following requirements:

A) The name, address, and telephone number of the protester.

B) The identification of the procurement or solicitation that is the subject of the protest.

C) All information establishing that the protester is an interested party.

D) A detailed statement of the factual and legal grounds of the protest, including all relevant documents and exhibits that demonstrate fraud, corruption or illegal acts having the effect of undermining the integrity of the procurement process.

E) All information establishing the timeliness of the protest.

F) The signature of the protester.

d) Stay of Action during Protest

When a protest has been timely filed and before an award has been made, CDB shall make no award of the contract until the protest has been resolved, unless the award of the contract without delay is necessary to protect the interests of the State. When a protest has been filed after an award has been made, the protest shall be denied.

e) Decision

A decision on a protest will be made as expeditiously as possible after receiving all relevant information.
The protest will be sustained only if it is determined by the CPO that the protest was filed by an interested party and conclusively demonstrates by the preponderance of relevant information submitted that fraud, corruption or illegal acts have occurred that undermine the integrity of the procurement process.
If the protest is sustained, CDB reserves the right to cancel or revise the solicitation, readvertise the solicitation, or award to the next low bidder.
The decision of the Chief Procurement Officer is final and conclusive.

44 Ill. Adm. Code 930.350 Contract Files

a) All written determinations required under this Part shall be placed in the contract file maintained by the CPO.

b) Whenever a contract liability exceeding $20,000 is incurred by CDB for projects conducted under the Act, a copy of the contract or purchase order shall be filed with the Comptroller within 30 calendar days thereafter. When a contract or purchase order has not been filed within 30 calendar days after execution, CDB must file with the Comptroller the contract or purchase order and an affidavit, signed by the CPO, setting forth an explanation of why the contract liability was not filed within 30 calendar days after execution. A copy of this affidavit shall be filed with the Auditor General.

c) No voucher shall be submitted to the Comptroller for a warrant to be drawn for

the payment of money from the State treasury or from other funds held by the State Treasurer on account of any contract unless the contract is reduced to writing before the services are performed and filed with the Comptroller. The CPO may request an exception to this subsection by submitting a written statement to the Comptroller and Treasurer setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services were performed. This Section shall not apply to emergency purchases if notice of the emergency purchase is published in CDB's Procurement Bulletin.

44 Ill. Adm. Code 930.360 Change Orders or Modifications

a) The Board has set staff approval levels for construction change orders or modifications with Board approval required for amounts deemed significant enough to be appropriate for Board-level approval of change orders or modifications, when the CPO determines in writing that a change is germane to the original contract.

b) Only work that is germane to the original contract shall be added by change order or modification. Proposed change orders or modifications that are determined by the CPO to not be germane to the original contract shall be procured in accordance with this Part.

c) All change orders and modifications shall be in writing and shall otherwise conform to the requirements of the Standard Documents for Construction. Prior to the execution of the actual change order or modification, changed work may proceed if authorized in writing according to the approval levels authorized by the Board, when so provided contractually.

d) For purposes of determining the scope of the change order and the value of the work under that change order that is subject to the requirements of this Section, the Board will consider the total net value of all added and deducted work functions related to the object of the change order and the work of the contract to be affected.

e) Notice of approved change orders and modifications shall be reported in CDB's Procurement Bulletin.

44 Ill. Adm. Code 930.370 Performance Evaluation

CDB shall evaluate the performance of each vendor upon completion of a contract, unless the CPO determines an evaluation is not required. CDB reserves the right to evaluate a vendor during a project, if determined to be warranted by CDB. Evaluations shall be made available to the vendor and the vendor may submit a written response, with the evaluation and response retained solely by CDB. The evaluation and response shall not be made available to any other person or firm unless authorized by law. The evaluation shall be based on the terms identified in the vendor's contract.

44 Ill. Adm. Code 930.380 Substantial Compliance with the Illinois Procurement Code

This Section provides additional requirements for the substantial compliance with the Sections of the Illinois Procurement Code listed in Section 930.130. This Section supplements the requirements found in the Code and does not excuse substantial compliance with any of the Code requirements.

a) Substantial Compliance with Code Section 20-160 (Business Entities; Certification; Registration with the State Board of Elections) and Section 50-37 (Prohibition of Political Contributions)

These requirements generally apply to a vendor whose existing State contracts have an aggregate value in excess of $50,000, whose aggregate value of bids/proposals for State contracts exceeds $50,000, or whose aggregate value of State contracts and bids/proposals exceeds $50,000, calculated on a calendar-year basis.
On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/proposals. Vendors must register with the State Board of Elections when the vendor determines that the value of the contracts and bids/proposals meets the threshold for registration.
Documentation of vendor compliance must be in the procurement file in relation to any contract for which a vendor is required to register as set forth in subsection (a)(2), unless the vendor certifies it is not required to register.

A) For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals, exceeds $50,000, the vendor must provide documentation of vendor compliance upon request and make the appropriate contract certification, if it has not already done so. The Registration Certificate issued by the State Board of Elections, or other evidence of vendor compliance, may be provided by reference to and incorporation of the vendor's prequalification by the CPO.

B) CDB shall identify in the solicitation whether the contract is estimated to exceed $50,000 annually. Vendors submitting bids or offers for master contracts estimated to exceed $50,000 annually, regardless of actual vendor consumption, are required to register with State Board of Elections.

C) For indefinite quantity/estimated value contracts that are not estimated to exceed $50,000 annually, a vendor who is otherwise not required to register shall register with the State Board of Elections when the maximum value of orders that may be placed pursuant to an indefinite/estimated value contract, plus all other contracts and bids/proposals, exceeds $50,000 annually. The vendor shall register with the State Board of Elections within 10 business days after orders exceed $50,000.

D) For contract amendments, if the value of the amendment, by itself or in combination with the contract being renewed plus other contracts and bids/proposals exceeds $50,000 annually, the vendor must provide the Registration Certificate or other evidence of compliance upon request and make the appropriate contract certification, if it has not already done so.

E) Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications, and the vendor must supply the Registration Certificate or other evidence of compliance upon request. If any violation by the vendor is not cured within 5 business days after receipt of notification of the violation, the contract is voidable by the State without penalty.

F) Certification of the requirement to register with the State Board of Elections (see 30 ILCS 20-160(a)) shall be included in or added to each contract that must be filed with the State Comptroller pursuant to Section 20-80 of the Code and those written two-party contracts that need not be filed with the Comptroller. CDB may require written confirmation of the certification at any time.

b) Substantial Compliance with Code Section 50-13 (Conflicts of Interest)

These conflicts apply to the direct interests of specified State employees or officeholders.
Office or Employment. It is unlawful for any person holding an elective office in this State, holding a seat in the General Assembly, or appointed to or employed in any of the offices or agencies of State government and who receives compensation for such employment in excess of 60% of the salary of the Governor of the State of Illinois, or who is an officer or employee of the Capital Development Board or the Illinois Toll Highway Authority, or who is the spouse or minor child of any such person, to have or acquire any contract, or any direct pecuniary interest in the contract therein, whether for stationery, printing, paper, or any services, materials, or supplies, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois or in any contract of the Capital Development Board or the Illinois Toll Highway Authority. [30 ILCS 500/50-13(a)].
Financial Interests. It is unlawful for any firm, partnership, association, or corporation, in which any person as described in subsection (b)(2) is entitled to receive more than 7½% of the total distributable income or an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/50-13(b)].
Combined Financial Interests. It is unlawful for any firm, partnership, association or corporation, in which any person listed in subsection (b)(2) together with his or her spouse or minor children is entitled to receive more than 15%, in the aggregate, of the total distributable income or an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein. [30 ILCS 500/50-13(c)].
For the purpose of this Part, an individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise received a direct financial benefit in conjunction with performance of a contract, including finder's fees and commission payments.
For the purpose of this Part, "distributable income" means the income of a company after payment of all expenses, including employee salary and bonuses, and retained earnings, which is distributed to those entitled to receive a share of the income. In the case of a for-profit corporation, distributable income means "dividends". When calculating entitlement to distributable income, the entitlement shall be determined at the end of the company's most recent fiscal year.
This Section applies to those elected or appointed to an office of Illinois State government. This Section does not apply to those elected to local government offices, including school districts, nor does it apply to those elected to federal offices in this State.

c) Substantial Compliance with Code Section 50-15 (Negotiations)

It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any vendor, partnership, association or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 500/50-15(a)]
An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an "independent contractor" is in a "continual contractual relationship" from the effective date of the contract until such time as the contract is terminated.
An individual who performs services pursuant to a contract and who meets the requirements of an "independent contractor", as opposed to an "employee", is in a "continual contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the State must act to terminate, or has a definite term of at least three months.

d) Substantial Compliance with Code Section 50-20 (Exemptions). If an individual finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, he or she shall forward to the CPO the name of the vendor and a description of the proposed contract and of the potential conflict, and shall state why an exemption should be granted. The CPO shall decide whether to disapprove the contract or request an exemption from the Executive Ethics Commission in accordance with Section 50-20 of the Code.

e) Substantial Compliance with Code Section 50-35 (Financial Disclosure and Potential Conflicts of Interest)

In circumstances in which the vendor refuses or is unable to provide disclosures, the CPO may authorize CDB to move forward with the transaction. In granting that authorization, CDB must provide documentation of efforts to obtain compliance.
New disclosures are required on contract renewals. New disclosures are not required for contract amendments.
For purposes of:

A) Section 50-35(b) of the Code, "parent entity" means an entity that owns 100% of the bidding or offering entity.

B) Section 50-35(b) of the Code, "distributive income" means the income of a company after payment of all expenses, including employee salaries and bonuses, and retained earnings that are distributed to those entitled to receive a share of that income. In the case of a for-profit corporation, distributable income means dividends. When calculating entitlement to distributable income, the entitlement shall be calculated at the end of the company's most recent fiscal year or when distributed.

C) Section 50-35(b) of the Code, "subject to federal 10K reporting" means subject to the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934 (15 USC 78a et seq.). "10K disclosure" means a report required under those statutes.

D) Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

10K Disclosures

A) Any vendor subject to federal 10K reporting requirements may submit its 10K to CDB in satisfaction of the disclosure requirement of Section 50-35(b) of the Code. The vendor may be required to identify the specific sections or parts in the 10K disclosure containing information, if any, pertaining to those who have an ownership interest or an interest in the distributive income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State. If the financial interest or conflict of interest information requested by the State is not in the 10K, or in a document that may be submitted to the SEC in conjunction with, or in lieu of, the 10K, then that additional documentation shall be provided.

B) 10K disclosures are available for public review. Any potential conflict of interest identified by the public and brought to the attention of CDB, or the CPO, shall be investigated.

C) In circumstances in which a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code, the CPO may consider information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure in determining whether a potential conflict of interest exists.

When an alleged conflict of interest or violation of the Code is identified, it shall be reviewed by the CPO, who must determine whether the contract, subcontract, bid, offer or proposal should be awarded. Prior to making a final determination, the potential conflict shall be submitted to PPB for review in accordance with Section 50-35(d) of the Code. If PPB recommends to allow the contract or subcontract, the CPO may award the contract. If the PPB recommends the contract, bid or offer be voided, then the CPO may determine to award the contract, considering whether the best interest of the State of Illinois will be served. Upon that determination, the EEC shall hold a public hearing. After the public hearing, the CPO may award the contract. The CPO may, at any juncture, determine to void the contract or award if to do so is determined to be in the best interest of the State. All written determinations and any documents relied upon or made part of any public hearing shall become a publicly available part of the procurement file.

f) Substantial Compliance with Code Section 50-36 (Disclosure of Business in Iran).

A period not to exceed 5 business days may be granted by the CPO to cure a failure to provide the disclosures required by this subsection.

g) Voidable Contracts

If any contract or amendment to the contract is entered into, or purchase or expenditure of funds is made, at any time in violation of this Part or any law, the contract or amendment may be declared void by the CPO or may be ratified and affirmed, provided the CPO determines that ratification is in the best interests of the State. If the contract is ratified and affirmed, it shall be without prejudice to the State's rights to any appropriate damages.
If, during the term of a contract, the CPO determines that the contractor is in violation of Section 50-10.5 of the Code, the CPO shall declare the contract void.
If, during the term of a contract, CDB determines that the contractor no longer qualifies to enter into State contracts by reason of Section 50-5, 50-10, 50-12, or 50-37 of the Code, the CPO may declare the contract void if it determines that voiding the contract is in the best interests of the State.
If, during the term of a contract, the CPO determines that a subcontractor no longer qualifies to enter into State contract by reason of Section 50-5, 50-10, 50-10.5, or 50-12 of the Code, the CPO may declare the related contract void if it determines that voiding the contract is in the best interests of the State. However, the related contract shall not be declared void unless the contractor refuses to terminate the subcontract, upon CDB's request, after a finding that the subcontractor no longer qualifies to enter into State contracts by reason of Section 50-5, 50-10, 50-10.5 or 50-12 of the Code.

Part 950 Prequalification and Bidder Responsibility

44 Ill. Adm. Code 950.110 Purpose

The Capital Development Board (CDB) contracts shall be awarded only to responsible contractors. A prospective contractor must affirmatively demonstrate its responsibility, including, when necessary, the responsibility of its proposed subcontractors and suppliers. In the absence of information clearly indicating that the prospective contractor is responsible, CDB shall make a determination of non-responsibility. Only responsible contractors shall be prequalified, and only prequalified contractors shall be permitted to bid on CDB projects. A determination of nonresponsibility may be made at any time prior to or after award of a contract.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.120 Policy

As a general proposition, except in instances of statutory exceptions, CDB shall award contracts to the lowest responsible and responsive bidder. However, award of a contract based on the lowest price alone can be false economy if there is subsequent default, late deliveries, or other unsatisfactory performance resulting in additional contractual or administrative costs. While it is important that Government purchases be made at the lowest price, this does not require an award to a contractor solely because that contractor submits the lowest offer.

44 Ill. Adm. Code 950.130 Definitions

The following definitions shall apply to this Part:

"A/E" means an individual or firm in the business of providing architectural, engineering or land surveying services as authorized by the State of Illinois Department of Professional Regulation (DPR). Licensed individuals shall be registered with DPR as sole proprietorships. Firms and corporations shall be registered with DPR.

"CDB" means the Capital Development Board.

"Contract Requirements" consist of any and all provisions of the CDB contract, which include, but are not limited to the following:

The timely submittal of all post-award requirements.

Material compliance with all applicable statutory requirements, local, State and federal laws, environmental and regulatory requirements and CDB Rules and Resolutions.

Payment of prevailing wage rate as determined by the Illinois Department of Labor.

Adherence to alternative dispute resolution provisions.

Material compliance with all Minority and Female Business Enterprise Act requirements and workforce hiring goals.

Timely payment to subcontractors and suppliers, unless rightfully withheld and the contractor does not request payment from CDB.

Material compliance with project schedules.

Maintaining applicable licensing requirements.

"Contractor" or "Bidder" means a firm that is in the business of constructing some or all aspects of building projects.

"Executive Director" means the Director of the Capital Development Board.

"Key Person" means any individual who holds 5% or more ownership interest in the firm. In the event the firm is owned by another corporation, partnership, trust or business association, any individual within that firm or who is a trust beneficiary who holds a 5% or more ownership or beneficial interest is considered a "key person". Regardless of ownership interest, any officer, partner or director is considered a "key person". This definition also includes any individual who assumes the responsibility of an officer, owner, partner, director, etc., regardless of ownership interest.

"New Bidder" is one that has no history of performance with CDB or who has been inactive for more than 3 years. Work history is determined in accordance with Section 950.170. Bidders who are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing non-responsible bidder will be declared non-responsible unless the new organization can demonstrate it was not set up for the purpose of avoiding an earlier declaration of non-responsibility.

"Performance Record" consists of but is not limited to the following:

Evidence of material compliance with all CDB contract requirements as referenced.

Data indicating the contractor has maintained quality workmanship and has met all contract requirements on previous contracts, private and public.

"Responsibility" is a determination made by CDB that the contractor is a responsible contractor. The determination may be made at any time prior to or following award of a contract. Because responsibility is affected by such things as financial resources, performance records, and organizational and operational factors, all of which are subject to change, the initial determination of responsibility, made through evaluation of a new or renewal application to CDB, may be changed upon receipt of additional or different information. The contractor is required to inform CDB of any significant change to the information submitted in its application. Each prospective bidder must provide the CDB with adequate documentation of responsibility. The CDB will ordinarily provide forms for this information. The CDB may supplement this information from other sources and may require additional documentation at any time. For ease of administration, the basic information generally will be garnered through the contractor/bidder responsibility application in the case of new bidders. The responsibility determination will be reviewed periodically through a renewal application. CDB reserves the right to demand completion of a contractor/bidder responsibility application and supporting documents at any time. A responsibility determination will also be reviewed on an ongoing basis through other information, including but not limited to performance evaluations and reference contacts.

"Responsible Contractor" is a firm that:

Has adequate financial resources to perform the contract, or the ability to obtain them. This includes, but is not limited to, the ability to obtain required bonds and insurance from sureties and insurance companies acceptable to CDB.

Is able to comply with the contract requirements, considering the firm's other business obligations.

Has a satisfactory performance record.

Has a satisfactory record of integrity and business ethics.

Has the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them. This includes, but is not limited to, qualified supervisory personnel and a work force qualified to meet CDB contract work force requirements.

Has the necessary production, construction, and technical equipment and facilities, or the ability to obtain them.

Has a current DHR number or application pending.

Has provided all information required by the Financial Interests and Potential Conflicts of Interest Disclosure forms required by Section 50-35 of the Illinois Procurement Code [30 ILCS 500/50-35].

Is otherwise qualified and eligible to receive a contract award under applicable laws and regulations.

"Responsive Bidder" means a person or firm who has submitted a bid that conforms in all material respects to the invitation for bids. Those who submit bids which are not in conformance with the requirements of the invitation for bids will be determined to be non-responsive, which factors include, but are not limited to:

Failure to be prequalified with CDB in advance of the bid opening date.

Submission of a bid late, in pencil, or in a manner that reveals the bid price prior to the bid opening (e.g., by facsimile).

Submission of a bid that is not in substantial conformance with the bidding documents.

Submission of bid security that is not in substantial compliance with the requirements of the bidding documents.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.140 Special Projects

When CDB determines a construction project is so large or specialized that a special bidder prequalification and responsibility determination is appropriate, CDB may set appropriate standards of acceptability different from those set out herein. Other provisions of this Part shall remain applicable.

History

Source: Amended at 22 Ill. Reg. 20007, effective November 9, 1998

44 Ill. Adm. Code 950.150 Confidentiality

Documents relating to responsibility determinations of a contractor shall be maintained by CDB in a separate file and shall remain confidential as records pertaining to occupational registration, except that they shall be subject to complete disclosure to the contractor to which they relate and to units of federal, State, or local government, including but not limited to law enforcement agencies. Nothing herein shall be construed to mean that CDB is required to disclose to the contractor the name of any person or organization filing a complaint or providing information to CDB when the complaint or information is used by CDB as the basis for further inquiry into the facts alleged. CDB may release to anyone the contractor's prequalification status with CDB. Notwithstanding the foregoing, neither the Contractor Performance Evaluations (CPE) nor the contractor's written responses to them shall be made available to any other person or firm.

History

Source: Amended at 28 Ill. Reg. 4857, effective March 4, 2004

44 Ill. Adm. Code 950.160 Sources for Determining Responsibility

To determine a contractor's responsibility, CDB may utilize information obtained from one or more of the following sources. In evaluating the information, greater consideration shall be given to the contractor's most recent projects and projects with CDB.

a) Contractor bidder responsibility and renewal application forms

New bidders applications shall at a minimum require of the contractor:

A) Completed application form.

B) Evidence of bonding capacity meeting CDB criteria.

C) Adherence to statutory requirements.

D) Satisfactory work history - reference checks. References obtained may be verified and documented by the following methods:

i) Telephone reference checks.

ii) Reference questionnaire.

Renewal applications shall at a minimum require of the contractor:

A) The information set out in subsection (a)(1) above.

B) Adherence to CDB rules and resolutions.

C) Satisfactory CDB work and performance history, which may be documented through evaluations prepared on both current and past CDB projects by the following:

i) CDB staff.

ii) Architects/engineers and consultants.

iii) Using agencies.

iv) Other contractors, subcontractors and suppliers.

Application updates

The contractor shall have an affirmative duty to update significant information as it occurs, including but not limited to changes in ownership, change of name, change of address, change in minority/female owned firm status, loss of SOS "good standing" status, suspension or debarment by another governmental agency, decrease by more than 25% in bonding capacity, filing of bankruptcy, contract terminations, and filing of formal criminal charges against the firm or its officers, owners, or employees. Failure to disclose as required may lead to action on prequalification. (See Section 950.210(c).)

b) Other government entities

CDB may conduct history reference checks by contacting federal, State or local governmental entities.

c) Other sources

CDB may conduct reference checks or gather relevant information from any other source in order to determine responsibility. Acceptable sources may include, but are not limited to:

Surety/bonding companies
Financial institutions
Periodicals
Newspapers
Court records
Dun and Bradstreet reports
Audited financial statements
Any type of public record

d) Previous employment history

For any newly organized firm or a firm with a limited work history, CDB may conduct individual performance reference checks on any or all personnel.

e) Additional information

CDB may request additional information from the contractor at any time.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.170 Processing of Contractor Prequalification and Bidder Responsibility and Renewal Applications

a) New bidders and bidders nearing the prequalification expiration date must complete a contractor prequalification and bidder responsibility application, including the Financial Interests and Potential Conflicts of Interest forms required under Section 50-35 of the Illinois Procurement Code [30 ILCS 500/50-35].

b) Processing of contractor prequalification and bidder responsibility applications by CDB may require up to 45 days when the application information is complete and satisfactory and references are responsive.

c) Applications for renewal will be sent to contractors approximately 60 days before the expiration of current prequalification and are available electronically on CDB's internet site at www.cdb.state.il.us. Contractors who do not receive an application are responsible for obtaining one at least 45 days prior to expiration. When all information received is complete and satisfactory, processing may take up to 45 days. When any information is incomplete or unsatisfactory, a longer processing time will be required. Contractors will be notified when information is incomplete or unsatisfactory. Unless otherwise specified in writing by CDB, the term of prequalification shall be one year. When prequalification is granted, the contractor will be notified in writing of the expiration date, which will also be entered on CDB's electronic program. CDB may grant a shorter term of prequalification by agreement with the contractor, when a determination is made that a shorter period is justified. CDB may, in its discretion, grant a longer period of prequalification when deemed appropriate in light of recent and relevant satisfactory project performance. Updated or new contractor information including the term of prequalification will be entered on CDB's electronic program weekly. The electronic program will be capable of, among other things, sorting contractors by trade to produce lists of contractors in various trades. At the beginning of each month, a list of contractors whose prequalification expires in approximately 60 days will be generated.

d) Applications may be sent to CDB by facsimile.

e) CDB shall review and evaluate each application received, which may include one or more of the following actions:

Reviewing to determine whether the application is filled out in accordance with the instructions provided.
Contacting work references or any other possible sources of pertinent information.
Requesting additional information from the applicant.
Reviewing CDB contractor performance evaluations.
Meeting with the applicant at the request of CDB or the applicant.

f) CDB shall deny prequalification to any firm that has not affirmatively demonstrated its responsibility. CDB's determination of responsibility shall be final.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.180 Ineligibility

A contractor, whether or not previously or currently prequalified and determined to be responsible by CDB, may be ineligible to bid under the following circumstances:

a) The contractor fails to meet statutory or regulatory requirements other than those set out in this Part.

b) The contractor has inadequate relevant experience in construction contracting to undertake CDB projects or a particular CDB project. In determining whether a contractor has adequate relevant experience, CDB will consider the size, type, number, and recency of past private and public contracts of the firm, its predecessors, or key persons with the firm.

c) The contractor has inadequate resources to meet the CDB contractual work force requirements. CDB shall not make a determination of responsibility for any contractor who has the appearance of being a broker, rather than a conventional construction business. In determining whether a contractor is a broker or a firm with inadequate resources, CDB may consider one or more of the following:

Whether the contractor maintains and works from a separate conventional office which is not a residence or offices for other businesses.
Whether the contractor maintains a full-time office and construction staff consisting of clerical, managerial, and supervisory personnel.
Whether key persons with the firm have an educational and work experience background that makes the key persons sufficiently expert and knowledgeable to carry out CDB construction projects.
Whether the contractor owns equipment, tools, machinery, materials or supplies used on construction projects.
Whether the contractor has financial resources related to or generated by the construction business.
Whether the contractor has historically subcontracted for a percentage of the work in construction contracts exceeding the requirements of CDB contracts.
Whether key persons with the firm are engaged in non-construction businesses.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.200 Actions Affecting Prequalification

At any time, CDB may consider whether action should be taken concerning prequalification. Actions that may be taken include one or more of the following:

a) Interim or Emergency Suspension or Modification

CDB may summarily suspend or modify a contractor's prequalification in accordance with Section 16 of the Capital Development Board Act [20 ILCS 3105/16].

b) Debarment

CDB may debar a contractor to exclude it from bidding for CDB contracts as authorized herein or by statute. The period of debarment shall be not less than five years and may be permanent when warranted or as authorized by law.

c) Modification of Ability to Bid

CDB may modify or limit a contractor's prequalification as appropriate, including, but not limited to one or more of the following:

Limiting the dollar amount a contractor may bid for a specified period of time, or until a current contract is substantially or fully complete.
Limiting the number of CDB contracts a contractor may enter into for a specified period of time, or until a current contract is substantially or fully complete.
Limiting the aggregate dollar amount of contracts the contractor may enter into, considering both public and private contracts.
Imposing limits as set forth above pending performance on the contractor's next CDB contract(s), in instances where the contractor has no current CDB contracts.

d) Conditional Prequalification

CDB may condition prequalification (which may be otherwise limited) on the contractor's successful utilization of a management plan, evaluations, conferences, or other methods designed to achieve satisfactory performance or compliance with contract requirements.

e) Suspension

CDB may suspend a contract or disqualify a contractor temporarily from contracting with CDB, for a period of time up to five years. The contractor's failure to timely pursue administrative action as provided by Subpart D of this Part shall constitute consent of the contractor to CDB's action.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.210 Causes for Suspension, Debarment, Modification of Ability to Bid, or Conditional Prequalification

CDB may determine a contractor is not responsible and suspend, debar or otherwise modify or issue a conditional prequalification based upon one or more of the following:

a) Failure to satisfactorily perform work on CDB contract(s), private contract(s), or other governmental contracts. (See also Section 950.220.)

b) Breach of the terms of a CDB contract(s), private contract(s), or other governmental contract(s). (See also Section 950.220.)

e) Financial instability which may be evidenced by bankruptcy, failure to timely pay subcontractors, difficulty in obtaining acceptable bonding, attempts to assign contract proceeds, or other indications of serious business management deficiencies.

f) Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards, which results in the extraordinary expenditure of CDB resources.

h) Suspension, debarment, or limits on bidding contracts by any other governmental body.

i) Excessive bid withdrawals on CDB projects.

j) Any other cause of so serious or compelling a nature that it affects the responsibility of a contractor.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.220 Failure to Satisfactorily Perform Work on or Breach of the Terms of Cdb Contracts, Private Contracts, or Other Governmental Contracts

CDB may take action upon prequalification for the contractor's failure to satisfactorily perform work on or breach of the terms of CDB contracts, private contracts, or other governmental contracts, such as, but not limited to, one or more of the following:

a) Failure to timely submit proper post-award documents, such as, but not limited to, bonds, certificates of insurance, and MBE/FBE subcontractor/supplier certifications.

b) Failure to attend or to be properly prepared for pre-construction meetings, pay/progress meetings, or other required meetings set by the project A/E, CDB, or the coordinating contractor.

c) Failure to timely provide schedule submittals or shop drawings.

d) Failure to meet the project schedule for any reason reasonably within the control of the contractor.

e) Failure to provide an acceptable quality of supervision.

f) Failure to provide a supervisor authorized to make timely field decisions on behalf of the firm.

g) Failure to provide sufficient manpower.

h) Failure to timely provide acceptable quality equipment, labor, materials, installation, subcontractors or suppliers, including the failure to provide licensed personnel when necessary.

i) Failure to keep updated as-builts in the field.

j) Failure to follow directives provided by the project A/E or CDB within the scope of the contract documents.

k) Failure to cooperate with other parties to the project to timely resolve project problems that arise.

l) Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards that results in paper delays, project delays, or the extraordinary expenditure of CDB resources.

m) Failure to provide timely and appropriate pay request documents, including, but not limited to, the Contractor's Schedule of Values form (Development), Contractor's Affidavit and Sworn Statement form (CASS), and lien waivers.

n) Failure to timely submit Requests for Proposals and Change Order documents (RFP/CO), including, but not limited to, adequate documentation of actual direct costs and pricing within conventional industry parameters for public contracts.

o) Failure to timely complete punch list items and contract close-out documents.

p) Failure to demonstrate good faith efforts to meet Fair Employment Practices (FEP) requirements and MBE/FBE goals.

History

Source: Added at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.230 Interim or Emergency Suspension or Modification Pursuant to Section 16 of the Capital Development Board Act

a) CDB may suspend or modify a contractor's prequalification without a prior hearing, or administrative procedure provided in Subpart D, for one or more of the following causes:

The public interest, safety or welfare requires such suspension or modification.
An event or series of events, including, but not limited to:

A) The filing of an indictment or of formal charges by information (complaint) charging the firm or a key person with the firm with a crime.

B) Suspension or modification of a license or prequalification by another State agency, federal agency or other branch of government after hearing or by agreement.

C) Failure to comply with applicable laws, including, but not limited to, the Minority and Female Business Enterprise Act [30 ILCS 575], the Prevailing Wage Act [820 ILCS 130], the Steel Products Procurement Act [530 ILCS 565], and requirements relating to occupational licensing.

D) Material breach of a contract, including, but not limited to, one or more of the causes set forth in Section 950.220.

E) Failure to satisfactorily perform work on or breach of a CDB contract, including, but not limited to, one or more of the causes set forth in Section 950.220, when:

i) The issue has been brought to the attention of firm management in writing;

ii) All levels of CDB construction administration have met with firm representatives and discussed the issue;

iii) CDB conveys to the contractor what action or nonaction is necessary and in accordance with the contract documents;

iv) CDB has initiated contractual remedies as may be appropriate, such as, but not limited to, stopping the work, rejecting the work, carrying out the work, or ordering acceleration of the work; and

v) The contractor willfully and unreasonably refuses to comply or to obtain subcontractors, personnel, or other resources that would enable it to comply.

b) When prequalification is suspended or modified pursuant to this Section, the contractor will be notified in writing and, within 30 days after the notice, CDB will commence administrative procedures under Subpart D.

c) When prequalification is suspended or modified pursuant to subsection (a)(2)(E), if the contractor cures the situation within 30 days after the notice, the suspension or modification will be rescinded by written notice. If CDB determines the contractor is making substantial progress toward a cure within 30 days after the notice, CDB may extend in writing the 30-day period by an amount up to an additional 60 days. If the contractor cures the situation within the extended time period, the suspension or modification will be rescinded by written notice. In any case, when the suspension or modification is rescinded, it will be removed from the contractor's prequalification record. If the contractor fails to cure the situation within 30 days or within the time extension, whichever is applicable, CDB will immediately commence administrative procedures under Subpart D.

History

Source: Added at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.240 Denial of Prequalification

a) This Section is applicable to contractors who are one of the following:

First-time applicants for CDB prequalification.
Firms who sent a renewal application that arrived at CDB after the prequalification expiration date or could not reasonably be processed before the expiration date.
Firms who sent a renewal application that was incomplete or insufficient, so that CDB could not reasonably process the application before the expiration date.

b) Contractors categorized above will be considered to be new applicants to CDB. In the event that CDB denies prequalification or grants a conditional or modified prequalification, the contractor may request administrative procedures under Subpart D, but shall not be entitled to an administrative hearing.

History

Source: Added at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.250 Increase or Decrease of Financial Prequalification Rating (repealed)

History

Source: Repealed at 16 Ill. Reg. 12424, effective July 28, 1992

44 Ill. Adm. Code 950.260 Aggregate Dollar Amount of Contracts (repealed)

History

Source: Repealed at 16 Ill. Reg. 12424, effective July 28, 1992

44 Ill. Adm. Code 950.270 Contracts More Than Seventy Percent (70%) Completed (repealed)

History

Source: Repealed at 16 Ill. Reg. 12424, effective July 28, 1992

44 Ill. Adm. Code 950.280 Joint Ventures (repealed)

History

Source: Repealed at 16 Ill. Reg. 12424, effective July 28, 1992

44 Ill. Adm. Code 950.290 Appeal of Prequalification Rating (repealed)

History

Source: Repealed at 16 Ill. Reg. 12424, effective July 28, 1992

44 Ill. Adm. Code 950.300 General

Suspension, debarment, nullification of prequalification, modification of prequalification, or issuance of conditional prequalification by CDB is applicable to a contractor's direct contracts with CDB and to subcontracts on CDB projects, unless otherwise determined under Section 950.360.

History

Source: Amended at 22 Ill. Reg. 20007, effective November 9, 1998

44 Ill. Adm. Code 950.310 Violation of Cdb Order

When a contractor works as a subcontractor on a CDB project in violation of Section 950.300, continues to submit bids on CDB projects when prohibited, or otherwise violates terms or conditions imposed by CDB, CDB may extend the term of suspension, debarment, nullification, modification, or conditional prequalification, or otherwise suspend, limit or condition the ability to bid on contracts with CDB.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.320 Nullification of Prequalification

When CDB determines that a contractor has knowingly made a material misrepresentation in its application for prequalification, the contractor may not re-apply to CDB for a period of three years.

a) When the contractor has not previously applied to CDB, or it failed to reapply, the three year period shall begin on the date of the submittal of the application.

b) When the contractor has been determined to be responsible in error, the three year period shall begin on the date the current responsibility determination was made.

c) CDB will notify the contractor of the nullity. The contractor may, within 30 days after notification, submit a written explanation with supporting documentation for CDB's review.

d) CDB may cancel awards or terminate any contracts awarded that were based upon the application with misrepresentations.

e) A material misrepresentation is made by knowingly submitting any untrue, misleading or deceptive information or document containing such information, or by the concealment, suppression or omission of any information, in or from an application, which causes CDB to act differently than it would have if it had known the undisclosed or true information.

History

Source: Amended at 22 Ill. Reg. 20007, effective November 9, 1998

44 Ill. Adm. Code 950.330 Denial of Award of Contract

Notwithstanding any other provisions in this Part, if CDB finds a contractor non-responsible due to one or more causes set out in Section 950.210 of this Part, CDB may deny the contractor the award of a contract.

44 Ill. Adm. Code 950.340 Debarment

CDB may debar a contractor to exclude it from bidding on CDB projects as provided herein or otherwise provided by statute. CDB will consider debarment in cases so serious and egregious in nature that a loss in excess of five years up to a permanent loss of bidding privileges may be warranted. In addition to the causes listed in Section 950.210, causes for debarment may include but not be limited to multiple or repetitive criminal convictions or multiple non-responsibility determinations. Actions to debar a contractor shall not prevent CDB from taking any other action under this Part. Following a period of debarment, when a contractor submits a prequalification application to CDB, the application shall be deemed to be a first-time application rather than one for renewal.

History

Source: Amended at 22 Ill. Reg. 20007, effective November 9, 1998

44 Ill. Adm. Code 950.350 Reapplication for Prequalification

When a contractor submits a prequalification application to CDB following a denial, or during or following a period of debarment, suspension, nullification, modification of ability to bid, or conditional prequalification, the contractor must affirmatively demonstrate its responsibility, including demonstrating that the reason for the denial, or imposition of suspension, debarment, nullification, modification, or condition, has been remedied.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.360 Extension of Cdb Action

The effect of action imposed by CDB will extend to all affiliates, branches, subsidiaries, divisions, or parent firms of the contractor, and to any firm in which the contractor or its key persons have a legal or beneficial interest, unless CDB determines otherwise in writing.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.370 Effect on Current Contracts

History

Source: Amended at 22 Ill. Reg. 20007, effective November 9, 1998

44 Ill. Adm. Code 950.380 Basis of Decisions

CDB shall make determinations as appropriate concerning the substance of a contractor's business as opposed to its form, and base its decisions on the substance. When a contractor attempts to evade the effects of a possible or actual finding of non-responsibility by changes of address, multiple addresses, changes in personnel or their titles, formation of new companies, or by other devices, CDB may take action pursuant to Section 950.200 and Subpart C of this Part.

44 Ill. Adm. Code 950.390 Settlement

Notwithstanding any provision of this Part, the parties to any contested matter concerning contractor prequalification may at any time enter into an agreement to resolve prequalification issues by settlement.

History

Source: Amended at 22 Ill. Reg. 20007, effective November 9, 1998

44 Ill. Adm. Code 950.400 Review

When information which places a contractor's responsibility and prequalification in question comes to CDB's attention, CDB shall review the facts and documentation. If further inquiry is desirable, it may do such further inquiry, which may result in an informal conference with the contractor and its appropriate staff members with CDB. If such conference is intended by CDB to be the first step in the administrative process, written notice will be sent pursuant to Section 950.410. The contractor's failure to appear at the conference shall be construed to indicate the contractor does not wish to contest the matter and rights to further administrative procedures shall be forfeited.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.410 Conference

a) Unless proceedings under Section 16 of the CDB Act [20 ILCS 3105/16] are justified, prior to suspending, conditioning, modifying or nullifying a contractor's prequalification or debarring a contractor, CDB will notify the contractor in writing of its intention to take such action and the basis of the action, and will request that the contractor attend an informal conference with CDB personnel.

b) When requesting a conference with a contractor, CDB's letter shall request that the contractor bring to the conference any documents, personnel, or other information pertinent to responsibility that it wishes for CDB to consider. The contractor may bring its attorney to the conference, if desired. Within a reasonable time in advance of the conference, CDB shall furnish the contractor with all information in its possession that it deems pertinent to the responsibility and prequalification issue, and shall further advise the contractor in writing that it has the right to inspect its prequalification file.

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.420 Executive Director

Following CDB's conference with the contractor, the committee shall forward a recommendation as to a determination of responsibility and prequalification to the Executive Director for consideration. The contractor will be notified in writing of the Executive Director's decision.

History

Source: Amended at 22 Ill. Reg. 20007, effective November 9, 1998

44 Ill. Adm. Code 950.430 Request for Reconsideration

Within 15 days after receipt of the Executive Director's decision, the contractor shall make any further appeal to the Executive Director in writing. The appeal shall request reconsideration of the decision and shall include as attachments any and all supporting evidence not previously submitted. CDB shall respond to the request for reconsideration within 15 days after CDB's receipt.

44 Ill. Adm. Code 950.440 Hearings

Within 30 days after the contractor's receipt of the Executive Director's decision on the request for reconsideration, the contractor may request a hearing in writing. All administrative procedures in this Subpart D must be exhausted before CDB will consider the request for a hearing. Hearings shall be conducted in accordance with Hearing Procedures (71 Ill. Adm. Code 100).

History

Source: Amended at 25 Ill. Reg. 10741, effective August 10, 2001

44 Ill. Adm. Code 950.450 Burden of Proof

Any determination pursuant to this Part may be made when CDB possesses documentation of one or more of the factors described in Section 950.180, 950.210, or 950.320. Such documentation constitutes a presumptive determination of non-responsibility. The contractor is entitled to rebut the presumption, through procedures described in this Subpart, but the presumption will not be overturned unless the contractor shows, by a preponderance of evidence, that each factor cited by CDB in support of its determination of non-responsibility is not present. CDB's determinations are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

History

Source: Amended at 22 Ill. Reg. 20007, effective November 9, 1998

Part 980 Prequalification of Architects and Engineers

44 Ill. Adm. Code 980.110 Purpose

The Capital Development Board professional services agreements shall be awarded only to prequalified architects or engineers. An applicant for prequalification must affirmatively demonstrate its responsibility. In the absence of information clearly indicating that the applicant is responsible, CDB shall make a determination of non-responsibility. Only responsible architects or engineers shall be prequalified and permitted to make submittals on CDB projects.

44 Ill. Adm. Code 980.120 Definitions

The following definitions shall apply to this Part:

"CDB" means the Capital Development Board, the agency.

"Consultant" means a firm or individual who will perform a portion of the contract or assist the A/E in its performance of the contract under a contract with the A/E.

"Contract or Contract Requirements" consist of any and all provisions of the CDB Professional Services Agreement (PSA).

"Office Location" means all locations at which the A/E provides professional services under the license granted by the Department of Professional Regulation and that are under the responsibility of the managing agent for that license.

"Parent Office" means the primary location of the A/E's place of business.

"Key Person" means any individual who holds 5% or more ownership interest in the firm. In the event the firm is owned by another corporation, partnership, trust or business association, any individual within that organization or who is a trust beneficiary who holds a 5% or more ownership or beneficial interest is considered a "key person". Regardless of ownership interest, any officer, partner, managing agent or director is considered a "key person". This definition also includes any individual who assumes the responsibility of an officer, owner, partner, director, etc., regardless of ownership interest.

"Performance Record" consists of, but is not limited to, the following:

Evidence of material compliance with all CDB contract requirements.

Data indicating the A/E has met all contract requirements on previous contracts, private and public.

"Prequalification" is the status granted by CDB to responsible A/Es that permits them to make submittals on CDB projects or be awarded a CDB contract.

"Profile Codes" means branches of knowledge or expertise of architectural or engineering practice that may be provided by firms and that are listed on CDB's A/E prequalification application.

"Responsibility" is a determination made by CDB that the A/E is a responsible A/E. The determination may be made at any time. Because responsibility is affected by such things as financial resources, performance records, and organizational and operational factors, all of which are subject to change, the initial determination of responsibility, made through evaluation of an application to CDB, may be changed upon receipt of additional or different information. The A/E is required to inform CDB of any significant change to the information submitted in its application. Each A/E must provide CDB with adequate documentation of responsibility. CDB will ordinarily provide forms for this information. CDB may supplement this information from other sources and may require additional documentation at any time. A responsibility determination may also be verified on an ongoing basis through other information, including but not limited to performance evaluations and reference contacts.

"Responsible A/E" is a firm that:

Has adequate financial resources to perform the contract, or the ability to obtain them. This includes, but is not limited to, the ability to obtain required insurance from insurance companies acceptable to CDB.

Is able to comply with the contract requirements, considering the firm's other business obligations.

Has a satisfactory performance record.

Has a satisfactory record of integrity and business ethics.

Has the necessary organization, experience, accounting and operational controls, and technical skills.

Has provided all information required by the Financial Interest and Potential Conflicts of Interest Disclosure forms required under Section 50-35 of the Illinois Procurement Code [30 ILCS 500/50-35].

Is otherwise qualified and eligible to receive a contract award under applicable laws and regulations.

"Trade Codes" means the professional practice in which the individual is licensed, or the firm is registered, by DPR to practice and, for general engineering licenses, any area of specialty within that practice.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.130 Prequalification Required

CDB shall prequalify A/Es as required by the Architectural Engineering and Land Surveying Qualifications Based Selection (QBS) Act [30 ILCS 535]. Firms must be prequalified prior to any submittal of qualifications or interest for a specific project and prior to entering a contractual relationship with CDB. All individuals and firms seeking to provide any services regulated by the Department of Professional Regulation on a CDB project shall be prequalified. Prequalification shall be based upon a determination of responsibility from, but not limited to, the information supplied on a properly completed CDB prequalification application.

History

Source: Amended at 24 Ill. Reg. 6663, effective April 17, 2000

44 Ill. Adm. Code 980.140 Special Projects

When CDB determines a construction project is so large or unique that a special A/E responsibility determination is warranted, CDB may set appropriate standards of acceptability different from those set out herein. Other provisions of this Part shall remain applicable.

44 Ill. Adm. Code 980.150 Confidentiality

Documents relating to responsibility determinations of an A/E shall be maintained by CDB in a separate file and shall remain confidential as records pertaining to occupational registration, except that they shall be subject to complete disclosure to the A/E to which they relate and to units of Federal, State, or local government, including but not limited to, law enforcement agencies. Nothing herein shall be construed to mean that CDB is required to disclose to the A/E the name of any person or organization filing a complaint or providing information to CDB when the complaint or information is used by CDB as the basis for further inquiry into the facts alleged. CDB may release to anyone the A/E prequalification status with CDB. Notwithstanding the foregoing, neither the A/E Performance Evaluations (A/E PE) nor the A/E's written responses to them shall be made available to any other person or firm.

History

Source: Amended at 28 Ill. Reg. 4862, effective March 4, 2004

44 Ill. Adm. Code 980.160 Sources for Determining Responsibility

To determine an A/E's responsibility, CDB may utilize information obtained from one or more of the following sources. In evaluating the information, greater consideration shall be given to the A/E's most recent projects and projects with CDB.

a) A/E prequalification application form.

A/E applications shall require at a minimum:

A) Completed application form;

B) The disclosure of the name of each key person associated with the firm, and their respective percentage of ownership;

C) Work experience relevant to the type of practice and profile codes requested;

D) Copies of the individual licenses for sole ownership firms transacting business under the individual's real name and applicable professional design firm registration with the Department of Professional Regulation for all firms;

E) Certification of compliance with statutory requirements;

F) Work history reference checks. References obtained may be verified and documented by the following methods:

i) Telephone reference checks; or

ii) Reference questionnaire; and

G) CDB work history, if CDB projects have been awarded.

Application updates

The A/E shall have an affirmative duty to update significant information within 10 days after occurrence. Failure to disclose as required may lead to action on prequalification. (See Section 980.310(c).) Significant changes, of which CDB shall be notified, include, but are not limited to:

A) Change of entity corporate structure, including sole owners, partnerships, and federal employee identification number;

B) Change of name;

C) Change of address;

D) Change or loss of personnel in areas that may affect the types of professional practice or profile codes that may have been granted;

E) Minority/Female owned firm status;

F) Change or initiation of hearing in licensure or registration status with the Department of Professional Regulation;

G) Loss of Secretary of State "good standing" status;

H) Filing of bankruptcy;

I) Filing of formal criminal charges against the firm or its officers, owners or employees;

J) Suspension or debarment by another governmental agency; and

K) Contract terminations.

b) Satisfactory CDB work history

CDB may review documentation of the A/E's current and past work and performance history, including adherence to CDB's rules, resolutions, and procedures. Such documentation includes, but is not limited to, performance evaluations prepared by CDB, user agencies, or contractors.

c) Other governmental entities

CDB may conduct history reference checks by contacting Federal, State or local governmental entities.

d) Other sources

In order to determine responsibility, CDB may conduct reference checks or gather relevant information from any other source, which may include, but is not limited to:

Financial institutions;
Periodicals;
Newspapers;
Court records;
Dun and Bradstreet reports;
Audited financial statements;
Any type of public record.

e) Previous employment history

For any newly organized firm or a firm with a limited work history, CDB may conduct individual performance reference checks on any or all personnel.

f) Additional information

CDB may request additional information from the A/E at any time.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.170 Department of Professional Regulation Action

a) Firms prequalified with CDB shall notify CDB in writing within 10 working days when the Department of Professional Regulation initiates proceedings to refuse to renew, suspend or revoke the registration or license of any individual or firm, or to impose any other disciplinary sanction.

b) Upon notification, prequalification will be reviewed and appropriate action taken under Subpart B. In addition, if it is found that notice was not provided as required, CDB may take action under Subpart B.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.180 Prequalification of Firms and Office Locations

a) Only legal entities permitted by law to practice architecture, engineering, or land surveying shall be prequalified, including any office location at which the firm provides architectural or engineering services.

b) The A/E shall list all office locations that the prequalification shall include and indicate any assumed name for each office location if different from the parent office. These office locations may be business subsidiaries, divisions, branches, etc. that provide professional services under the responsibility of the managing agent for the A/E.

c) Prequalification shall not be extended to another business location or entity of the A/E solely because of an ownership relationship.

History

Source: Amended at 24 Ill. Reg. 6663, effective April 17, 2000

44 Ill. Adm. Code 980.190 Trade Codes and Profile Codes

a) The A/E shall indicate on the application form specific trade codes and profile codes within the A/E's type of practice(s) in which the A/E has specific areas of knowledge, expertise, or experience. The applicant may indicate only those trade codes consistent with the applicant's licensed areas of practice.

b) This information may be used by CDB in the selection of firms for projects. It does not relieve the firm from providing the same or additional information in the statement of qualifications submitted for a specific project. CDB may request additional information during the prequalification process to verify that the firm possesses the required knowledge, expertise or experience to be considered for work in any profile code. CDB may deny prequalification in a particular profile code during the prequalification process if the firm fails to demonstrate its knowledge, expertise or experience to CDB's satisfaction.

c) Demonstration of knowledge, expertise, or experience in a profile code may be required to be supported by licenses or certification issued by governmental agencies such as the Department of Public Health, Illinois Historic Preservation Agency, etc.

d) CDB's decisions regarding the types of profile codes granted to an A/E shall not be subject to hearing procedures (Section 980.530). However, upon request of a firm, a conference to discuss the issue shall be held.

History

Source: Amended at 24 Ill. Reg. 6663, effective April 17, 2000

44 Ill. Adm. Code 980.200 Processing of Architect-Engineer Prequalification Application

a) A/Es must complete a prequalification application, including the Financial Interest and Potential Conflicts of Interest forms required under Section 50-35 of the Illinois Procurement Code [30 ILCS 500/50-35].

b) Processing of applications by CDB may require up to 45 days after receipt of all requested information and a completed application.

c) Applications for renewal will ordinarily be sent to the A/Es approximately 60 days before the expiration of current prequalification and are available electronically on CDB's Internet site at www.cdb.state.il.us. A/Es who do not receive an application are responsible for obtaining one at least 45 days prior to expiration. When all information received is complete and satisfactory, processing may take up to 45 days. When any information is incomplete or unsatisfactory, a longer processing time will be required. A/Es will be notified when information is incomplete or unsatisfactory. Unless otherwise specified in writing by CDB, the term of prequalification shall be two years from the end of the month the prequalification begins. When prequalification is granted, the A/E will be notified in writing of the expiration date, which will also be entered on CDB's electronic program. CDB may grant a shorter term of prequalification by agreement with the A/E, when a determination is made that a shorter period is justified, or when a special prequalification is developed specifically for a certain project. Updated or new A/E information including the term of prequalification will be entered on CDB's electronic program weekly. The electronic program will be capable of, among other things, sorting A/Es by profile code to produce lists of A/Es in various profile codes. At the beginning of each month, a list of A/Es whose prequalification expires in approximately 60 days will be generated.

d) Applications may be sent to CDB by facsimile.

e) CDB shall review and evaluate each application received, which may include one or more of the following actions:

Reviewing to determine whether the application is filled out in accordance with the instructions provided;
Contacting work references or any other possible sources of pertinent information;
Requesting additional information from the applicant;
Reviewing CDB A/E performance evaluations; and
Meeting with the applicant at the request of CDB or the applicant.

f) CDB shall deny prequalification to any firm that has not affirmatively demonstrated its responsibility. CDB's determination of responsibility shall be final.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.210 Ineligibility (repealed)

History

Source: Repealed at 24 Ill. Reg. 6663, effective April 17, 2000

44 Ill. Adm. Code 980.300 Actions Affecting Responsibility and Prequalification

At any time, CDB may consider whether an action is warranted concerning an A/E's prequalification. Actions that may be taken include one or more of the following:

a) Interim or Emergency Suspension or Modification

CDB may summarily suspend or modify an A/E's prequalification in accordance with Section 16 of the Capital Development Board Act [20 ILCS 3105/16].

b) Debarment

CDB may debar an A/E to exclude it from making submittals for CDB contracts as authorized by statute. The period of debarment shall be not less than five years and may be permanent when warranted or as authorized by law [20 ILCS 3105/16].

c) Modification of Prequalification

CDB may modify or restrict an A/E's prequalification as appropriate, including, but not limited to, one or more of the following:

Limiting the size or type of contracts for which an A/E may submit proposals for a specified period of time, or until a current contract is substantially or fully complete.
Limiting the number of CDB contracts an A/E may enter into for a specified period of time, or until a current contract is substantially or fully complete.
Limiting the aggregate dollar amount of contracts the A/E may enter into with CDB.
Imposing limits as set forth above pending performance on the A/E's next CDB contract(s) in instances where the A/E has no current CDB contracts.

d) Conditional Prequalification

CDB may condition prequalification (which may be otherwise limited) on the A/E's successful utilization of a management plan, evaluations, conferences, or other methods designed to achieve satisfactory performance or compliance with contract requirements.

e) Suspension

CDB may suspend an A/E firm or disqualify an A/E firm temporarily from submitting with CDB, for a period of time up to five years. The A/E's failure to timely pursue administrative action as provided by Subpart D of this Part shall constitute consent of the A/E to CDB's action.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.310 Causes for Suspension, Debarment, Modification of Prequalification, and Conditional Prequalification

CDB may determine an A/E is not responsible and suspend, debar or otherwise modify a prequalification or issue a conditional prequalification based upon one or more of the following:

a) Failure to satisfactorily perform work on CDB contract(s), private contract(s), or other governmental contract(s). (See also Section 980.330.)

b) Breach of the terms of a CDB contract(s), private contract(s), or other governmental contract(s). (See also Section 980.330.)

c) Making false or misleading statements or failing to disclose or update significant information in connection with CDB procedures or documents, including but not limited to the prequalification application.

d) Violation of civil or criminal Federal or State statutes or administrative rules and regulations. In the case of criminal violations, indictment or filing of formal charges by information (complaint) shall constitute adequate evidence for a determination of non-responsibility.

e) Financial instability which may be evidenced by bankruptcy, failure to timely pay consultants, difficulty in obtaining acceptable insurance, attempts to assign contract proceeds, or other indications of serious business management deficiencies.

f) Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards, which results in the extraordinary expenditure of CDB resources.

h) Suspension, debarment, or limits on contracts by any other governmental body.

i) Failure to be properly licensed or registered with the Department of Professional Regulation (DPR), being the subject of disciplinary sanctions by DPR, or the subject of initiation of proceedings by DPR to refuse to renew, suspend or revoke the registration or license of the A/E, or to impose any other disciplinary sanction.

j) Any other cause of so serious or compelling a nature that it affects the responsibility of an A/E.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.320 Nullification of Prequalification

When CDB determines that an A/E has knowingly made a material misrepresentation in its application for prequalification, the A/E may not reapply to CDB for a period of three years from the date of the determination of material misrepresentation.

a) CDB will notify the A/E of the nullification. The A/E may, within 30 days after notification, submit a written explanation with supporting documentation for CDB's review.

b) CDB may cancel awards or terminate any contracts awarded that were based upon the application with misrepresentations.

c) A material misrepresentation is made by knowingly submitting any untrue, misleading or deceptive information or document containing such information, or by the concealment, suppression or omission of any information, in or from an application, which causes CDB to act differently than it would have if it had known the undisclosed or true information.

History

Source: Amended at 24 Ill. Reg. 6663, effective April 17, 2000

44 Ill. Adm. Code 980.330 Failure to Satisfactorily Perform Work on or Breach of the Terms of Cdb Contracts, Private Contracts, or Other Governmental Contracts

CDB may take action upon prequalification for the A/E's failure to satisfactorily perform work on or breach of the terms of CDB contracts, private contracts, or other governmental contracts, such as, but not limited to, one or more of the following:

a) Failure to timely submit required documents and drawings, including record drawings, according to the project schedule, causing a delay in the commencement, completion or close out of a project.

b) Failure to adequately or timely respond to technical review comments and directions.

c) Failure to adhere to contractual document requirements.

d) Failure to adequately or timely notify CDB of project problems or failure to cooperate with other parties to the project to timely resolve problems.

e) Failure to timely or adequately resolve design issues.

f) Failure to timely or adequately submit budget and estimating documents.

g) Failure to meet quality standards of the applicable profession or required codes and standards for a particular type of construction.

h) Failure to provide proper field administration and observer services.

i) Failure to provide proper personnel or proper and timely responses to requests for information in the field.

j) Failure to provide timely and adequate record drawings.

k) Failure to meet contractual design schedule dates.

l) Failure to timely process change orders and contractor pay requests.

m) Failure to follow directives from CDB within the scope of the contract documents.

n) Failure to attend or to be properly prepared for project meetings.

o) Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards that results in paper delays, project delays, or the extraordinary expenditure of CDB resources.

p) Failure to submit proper pay or modification requests, in accordance with the contractual provisions, with adequate documentation of costs and pricing within conventional industry parameters for public contracts.

History

Source: Added at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.340 Interim or Emergency Suspension or Modification Pursuant to Section 16 of the Capital Development Board Act

a) CDB may suspend or modify an A/E's prequalification without a prior hearing or administrative procedure provided in Subpart D, for one or more of the following causes:

The public interest, safety or welfare requires such suspension or modification.
An event or series of events including, but not limited to:

A) The filing of an indictment or of formal charges by information (complaint) charging the firm or a key person with the firm with a crime.

B) Suspension or modification of a license or prequalification by another State agency, federal agency or other branch of government after hearing or by agreement.

C) Failure to comply with applicable laws.

D) Material breach of a contract, including, but not limited to, one or more of the causes set forth in Section 980.330.

E) Failure to satisfactorily perform work on or breach of a CDB contract, including, but not limited to, one or more of the causes set forth in Section 980.330 when:

i) The issue has been brought to the attention of firm management in writing;

ii) All levels of CDB construction administration have met with firm representatives and discussed the issue;

iii) CDB conveys to the A/E what action or nonaction is necessary and in accordance with the contract documents;

iv) The A/E willfully and unreasonably refuses to comply or to obtain consultants, personnel, or other resources that would enable it to comply.

b) When prequalification is suspended or modified pursuant to this Section, the A/E will be notified in writing and, within 30 days after the notice, CDB will commence administrative procedures under Subpart D.

c) When prequalification is suspended or modified pursuant to subsection (a)(2)(E), if the A/E cures the situation within 30 days after the notice, the suspension or modification will be rescinded by written notice to the A/E. If CDB determines the A/E is making substantial progress toward a cure within 30 days after the notice, CDB may extend in writing the 30-day period by an amount up to an additional 60 days. If the A/E cures the situation within the extended time period, the suspension or modification will be rescinded by written notice. In any case, when suspension or modification is rescinded, it will be removed from the A/E's prequalification record. If the A/E fails to cure the situation within 30 days or within the time extension, whichever is applicable, CDB will immediately commence administrative procedures under Subpart D.

History

Source: Added at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.350 Denial of Prequalification

a) This Section is applicable to A/Es who are one of the following:

First-time applicants for CDB prequalification.
Firms who sent a renewal application that arrived at CDB after the prequalification expiration date or could not reasonably be processed before the expiration date.
Firms who sent a renewal application that was incomplete or insufficient, so that CDB could not reasonably process the application before the expiration date.

b) A/Es categorized above will be considered to be new applicants to CDB. In the event that CDB denies prequalification or grants a conditional or modified prequalification, the A/E may request administrative procedures under Subpart D, but shall not be entitled to an administrative hearing.

History

Source: Added at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.400 General

Suspension, debarment, nullification of prequalification, modification of prequalification, issuance of conditional prequalification, or denial of prequalification by CDB is applicable to an A/E's direct contracts with CDB and any consultant subcontracts on other contracts on CDB projects, unless CDB determines otherwise in writing.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.410 Violation of Cdb Order

If an A/E is subject to a CDB order suspending or debarring the A/E, or nullifying or modifying prequalification, or making prequalification conditional, or denying prequalification, and the A/E violates the order in any manner, including but not limited to continuing to make submittals on CDB projects, or working as a subcontracted consultant on a CDB project, CDB may extend the term of suspension, debarment, nullification, modification or conditional prequalification, or otherwise limit or condition the ability to make submittals on contracts with CDB.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.420 Denial of Award of Contract

Notwithstanding any other provisions in this Part, if CDB finds an A/E non-responsible, CDB may deny the A/E the award of a contract.

44 Ill. Adm. Code 980.430 Debarment

CDB may debar an A/E to exclude it from submitting on CDB projects. CDB will consider debarment in cases so serious and egregious in nature that a permanent loss of submittal privileges may be warranted. In addition to the causes listed in Section 980.310, causes for debarment may include but not be limited to multiple or repetitive criminal convictions or multiple non-responsibility determinations. Following a period of debarment, when an A/E submits a prequalification application to CDB, the application shall be deemed to be a first-time application rather than one for renewal.

History

Source: Amended at 22 Ill. Reg. 20026, effective November 9, 1998

44 Ill. Adm. Code 980.440 Reapplication for Prequalification

When an A/E submits a prequalification application to CDB following a denial, or during or following a period of debarment, suspension, nullification, modification of prequalification, or conditional prequalification, the A/E must affirmatively demonstrate its responsibility, including demonstrating that the reason for the denial, or imposition of suspension, debarment, nullification, modification, or condition, has been remedied.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.450 Extension of Cdb Action

The effect of an action imposed under this Subpart by CDB will extend to all office locations of the A/E and to any firm in which the A/E or its key persons have a legal or beneficial interest, unless CDB determines otherwise in writing.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.460 Effect on Current Contracts

Current CDB contracts may be terminated when an A/E is determined to be non-responsible and it is in the public interest to do so, whether or not the non-responsibility has a direct connection with the current contract. Contracts may be terminated with or without further action on the A/E's prequalification.

History

Source: Old Section repealed at 24 Ill. Reg. 6663, effective April 17, 2000; new Section added at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.470 Basis of Decisions

a) CDB shall make determinations as appropriate concerning the substance of an A/E's business as opposed to its form and base its decisions on the substance. When an A/E attempts to evade the effects of a possible or actual finding of non-responsibility by changes of address, multiple addresses, changes in personnel or their titles, formation of new companies, or by other devices, CDB may take action pursuant to Section 980.300 and Subparts B and C of this Part.

b) A/Es who are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing non-responsible firm will be declared non-responsible unless the new organization can demonstrate it was not set up for the purpose of avoiding an earlier declaration of non-responsibility.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.480 Settlement

Notwithstanding any provision of this Part, the parties to any contested matter concerning an A/E's prequalification may at any time enter into an agreement to resolve responsibility issues by settlement.

44 Ill. Adm. Code 980.500 Review

When information that places an A/E's responsibility in question comes to CDB's attention, CDB shall review the facts and documentation. If further inquiry is desirable, it may do such further inquiry, which may result in an informal conference with the A/E and its appropriate staff members with CDB.

44 Ill. Adm. Code 980.510 Notice of Cdb Action

Unless proceedings under Section 16 of the CDB Act [20 ILCS 3105/16] are justified, prior to suspending, conditioning, modifying or nullifying an A/E's prequalification or debarring an A/E, CDB will notify the A/E in writing of its intention to take such action and the basis of the action, and will request that the A/E attend an informal conference with CDB personnel. The A/E may bring to the conference any documents, personnel, or other pertinent information that it wishes for CDB to consider. The A/E may bring its attorney to the conference, if desired. Within a reasonable time in advance of the conference, CDB shall furnish the A/E with all information in its possession that it deems pertinent and shall advise the A/E in writing that it has the right to inspect its prequalification file. Further conferences may be scheduled by agreement of CDB and the A/E. The A/E's failure to appear at the conference shall be construed to indicate the A/E does not wish to contest the matter and rights to further administrative proceedings shall be forfeited.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.520 Executive Director Decision and Request for Reconsideration

Following CDB's conference with the A/E, the conference committee shall forward a recommendation to the Executive Director. The A/E will be notified in writing of the Executive Director's decision. Within 15 days after receipt of the Executive Director's decision, the A/E may request the Executive Director's reconsideration in writing, including as attachments any and all supporting evidence not previously submitted. CDB shall respond to the request for reconsideration within 15 days after CDB's receipt.

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.530 Hearings

Within 30 days after the A/E's receipt of the Executive Director's decision on reconsideration, the A/E may request a hearing in writing. All administrative procedures in this Subpart D must be exhausted before CDB will consider the request for a hearing. Hearings shall be conducted in accordance with Hearing Procedures (71 Ill. Adm. Code 100).

History

Source: Amended at 25 Ill. Reg. 10759, effective August 10, 2001

44 Ill. Adm. Code 980.540 Burden of Proof

a) Any determination pursuant to this Part may be made when CDB possesses documentation of one or more of the factors described in Section 980.310, 980.320, or 980.410.

b) Such documentation constitutes a presumptive determination of non-responsibility. The A/E is entitled to rebut the presumption, through procedures described in this Subpart, but the presumption will not be overturned unless the A/E shows, by a preponderance of evidence, that each factor cited by CDB in support of its determination of non-responsibility is not present. CDB's determinations are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

History

Source: Amended at 22 Ill. Reg. 20026, effective November 9, 1998

Part 990 Prequalification of Construction Managers

44 Ill. Adm. Code 990.110 Purpose

The Capital Development Board construction management agreements shall be awarded only to prequalified construction managers. An applicant for prequalification must affirmatively demonstrate its responsibility. In the absence of information clearly indicating that the applicant is responsible, CDB shall make a determination of non-responsibility. Only responsible construction managers shall be prequalified and permitted to make submittals on CDB projects.

44 Ill. Adm. Code 990.120 Definitions

The following definitions shall apply to this Part:

"CDB" means the Capital Development Board, the agency.

"CM" means any individual, sole proprietorship, firm, partnership, corporation, or other legal entity providing construction management services.

"Consultant" means a firm or individual who will perform a portion of the contract or assist the CM in its performance of the contract under a contract with the CM.

"Contract" or "Contract Requirements" consist of any and all provisions of the CDB Construction Management Contract (CMC).

"Key Person" means any individual who holds 5% or more ownership interest in the firm. In the event the firm is owned by another corporation, partnership, trust or business association, any individual within that organization or who is a trust beneficiary who holds a 5% or more ownership or beneficial interest is considered a key person. Regardless of ownership interest, any officer, partner, managing agent or director is considered a key person. This definition also includes any individual who assumes the responsibility of an officer, owner, partner, director, etc., regardless of ownership interest.

"Office Location" means all locations at which the CM provides construction management services.

"Parent Office" means the primary location of the CM's place of business.

"Performance Record" consists of, but is not limited to, the following:

Data indicating the CM has met all contract requirements on previous contracts, private and public.

Evidence of material compliance with all CDB contract requirements.

"Prequalification" is the status granted by CDB to responsible CMs that permits them to make submittals on CDB projects or to be awarded a CDB contract.

"Responsibility" is a determination made by CDB that the CM is a responsible CM. The determination may be made at any time. Because responsibility is affected by such things as financial resources, performance records, and organizational and operational factors, all of which are subject to change, the initial determination of responsibility, made through evaluation of an application to CDB, may be changed upon receipt of additional or different information. The CM is required to inform CDB of any significant change to the information submitted in its application. Each CM must provide CDB with adequate documentation of responsibility. CDB will ordinarily provide forms for this information. CDB may supplement this information from other sources and may require additional documentation at any time. A responsibility determination may also be verified on an ongoing basis through other information, including but not limited to performance evaluations and reference contacts.

44 Ill. Adm. Code 990.130 Prequalification Required

CDB shall prequalify CMs as required by Article 33 of the Illinois Procurement Code [30 ILCS 500/Art. 33]. Firms must be prequalified prior to any submittal of qualifications or interest for a specific project and prior to entering a contractual relationship with CDB. Prequalification shall be based upon a determination of responsibility from, but not limited to, the information supplied on a properly completed CDB prequalification application.

44 Ill. Adm. Code 990.140 Special Projects

a) When CDB determines a construction project is so large or unique that a special CM responsibility determination is warranted, CDB may set appropriate standards of acceptability different from those set out in this Part, including the prequalification of CMs as part of submittals of statements of qualifications. Other provisions of this Part shall remain applicable.

b) A public notice will be posted on CDB's Procurement Bulletin (www.cdb.state.il.us) and may be published in the CMS Procurement Bulletin, in the official State newspaper or otherwise made available in print describing the project and any special prequalification requirements.

c) The notice will be published at least 30 days before the date the special prequalification application or the statement of qualifications is due.

d) Prequalification standards may be revised to be more closely related to the needs or environment of the special project, e.g., required firm and/or personnel experience may be limited to a particular size of project, or to experience in a particular environment such as correctional facility work.

44 Ill. Adm. Code 990.150 Confidentiality

Documents relating to responsibility determinations of a CM shall be maintained by CDB in a separate file and shall remain confidential as records pertaining to occupational registration, except that they shall be subject to complete disclosure to the CM to which they relate and to units of federal, State, or local government, including, but not limited to, law enforcement agencies. Nothing in this Part shall be construed to mean that CDB is required to disclose to the CM the name of any person or organization filing a complaint or providing information to CDB when the complaint or information is used by CDB as the basis for further inquiry into the facts alleged. CDB may release to anyone the CM prequalification status with CDB. Notwithstanding the foregoing, neither the CM Performance Evaluations (CM PE) nor the CM's written responses to them shall be made available to any other person or firm.

44 Ill. Adm. Code 990.160 Sources for Determining Responsibility

To determine a CM's responsibility, CDB may utilize information obtained from one or more of the following sources. In evaluating the information, greater consideration shall be given to the CM's most recent projects and projects with CDB.

a) CM Prequalification Application Form

CM applications shall require, at a minimum:

A) Completed application form;

B) The name of each key person associated with the firm, and that person's respective percentage of ownership;

C) Relevant work experience;

D) Certification of compliance with statutory requirements;

E) Work history reference checks. References obtained may be verified and documented by the following methods:

i) Telephone reference checks; or

ii) Reference questionnaire;

F) CDB work history, if CDB projects have been awarded; and

G) The applicant's phone and fax numbers and the firm's e-mail address.

Application Updates

The CM shall have an affirmative duty to update significant information within 10 days after occurrence. Failure to disclose as required may lead to action on prequalification. (See Section 990.310(c).) Significant changes of which CDB shall be notified include, but are not limited to:

A) Change of entity corporate structure, including sole owners, partnerships, and federal employee identification number;

B) Change of name;

C) Change of address;

D) Change or loss of key personnel;

E) Minority/Female owned firm status;

F) Loss of Secretary of State "good standing" status;

G) Filing of bankruptcy;

H) Filing of formal criminal charges against the firm or its officers, owners or employees;

I) Suspension or debarment by another governmental agency; and

J) Contract terminations.

b) Satisfactory CDB Work History

CDB may review documentation of the CM's current and past work and performance history, including adherence to CDB's rules, resolutions, and procedures. The documentation includes, but is not limited to, performance evaluations prepared by CDB, user agencies, or contractors.

CDB shall evaluate the performance of each firm upon completion of a contract. Evaluations shall be made available to the firm and the firm may submit a written response, with the evaluation and response retained solely by CDB. The evaluation and response shall not be made available to any other person or firm and is exempt from disclosure under the Freedom of Information Act [5 ILCS 140]. The evaluation shall be based on the terms identified in the construction manager's contract. [30 ILCS 500/33-45]
In addition to subsection (b)(1), CDB reserves the right to evaluate a firm during a project when performance issues warrant that action.

c) Other Governmental Entities

CDB may conduct history reference checks by contacting federal, state or local governmental entities.

d) Other Sources

In order to determine responsibility, CDB may conduct reference checks or gather relevant information from any other source, which may include, but is not limited to:

Financial institutions;
Periodicals;
Newspapers;
Court records;
Dun and Bradstreet reports;
Audited financial statements;
Any type of public record.

e) Previous Employment History

For any newly organized firm or a firm with a limited work history, CDB may conduct individual performance reference checks on any or all personnel.

f) Additional Information

CDB may request additional information from the CM at any time.

44 Ill. Adm. Code 990.180 Prequalification of Firms and Office Locations

a) The CM shall list all office locations on the prequalification application for which it seeks prequalification. These office locations may be business subsidiaries, divisions, branches, etc., that provide construction management services under the responsibility of the CM. CDB reserves the right to evaluate each office based on the criteria set forth within this Part. Any offices not listed on applications shall not be deemed prequalified.

b) Prequalification shall not apply to any other business location or entity of the CM solely because of an ownership relationship.

44 Ill. Adm. Code 990.200 Processing of Construction Manager Prequalification Application

a) CMs must complete a prequalification application, including the Financial Interests and Potential Conflicts of Interest forms required under Section 50-35 of the Illinois Procurement Code [30 ILCS 500/50-35].

b) Applications for renewal will ordinarily be sent to the CMs approximately 60 days before the expiration of current prequalification and are available electronically on CDB's Internet site at www.cdb.state.il.us. CMs who do not receive an application are responsible for obtaining one. CMs must submit their completed applications at least 45 days prior to the expiration date of their prequalification.

c) Processing of applications (either initial or renewal) by CDB will require up to 45 days after receipt of all requested information and a completed application. When any information is incomplete or unsatisfactory, a longer processing time will be required. CMs will be notified when information is incomplete or unsatisfactory.

d) Unless otherwise specified in writing by CDB, the term of prequalification shall be two years from the end of the month the prequalification begins. When prequalification is granted, the CM will be notified in writing of the expiration date, which will also be entered on CDB's electronic program. CDB may grant a shorter term of prequalification by agreement with the CM, when a determination is made that a shorter period is justified, or when a special prequalification is developed specifically for a certain project. Updated or new CM information including the term of prequalification will be entered on CDB's electronic program weekly. At the beginning of each month, a list of CMs whose prequalification expires in approximately 60 days will be generated.

e) Applications may be sent to CDB by facsimile or e-mail.

f) CDB shall review and evaluate each application received, which may include one or more of the following actions:

Reviewing to determine whether the application is complete;
Contacting work references or any other possible sources of pertinent information;
Requesting additional information from the applicant;
Reviewing CDB CM performance evaluations; and
Meeting with the applicant at the request of CDB or the applicant.

g) The criteria to be evaluated include whether the CM has adequate resources.

Whether the CM maintains and works from a separate conventional office that is not a residence to offices for other businesses.
Whether the CM maintains a full-time office and staff.
Whether key persons in the firm have an educational and work experience background that makes the key persons sufficiently expert and knowledgeable to carry out the work.
Whether the CM has financial resources related to or generated by the construction businesses.
Whether key persons in the firm are engaged in non-construction businesses.

h) CDB shall grant prequalification to those applicants who:

complete applications for prequalification;
have a history of satisfactorily performing construction management services, as confirmed by CDB through written reference checks or CDB performance evaluations;
have or are in the process of obtaining an Illinois Department of Human Rights number;
have staff that have experience performing construction manager services;
do not meet any of the criteria set forth in questions 18 through 23 of the application (violation of safety or environmental laws; conviction of bribery, etc.; bankruptcy; past suspension or debarment; student loan default); and
have been and are likely to be "responsible" as represented by negative findings for the criteria listed in Sections 990.310 and 990.330.

i) The fact that an applicant may be prequalified does not necessarily represent a finding of responsibility for a particular procurement.

j) CDB shall deny prequalification to any firm that has not affirmatively demonstrated its responsibility.

k) CDB's determination of responsibility shall be final.

44 Ill. Adm. Code 990.300 Actions Affecting Responsibility and Prequalification

At any time, CDB may consider whether an action is warranted concerning a CM's prequalification. Actions that may be taken include one or more of the following:

a) Interim or Emergency Suspension or Modification

CDB may summarily suspend or modify a CM's prequalification in accordance with Section 16 of the Capital Development Board Act [20 ILCS 3105/16].

b) Debarment

CDB may debar a CM to exclude it from making submittals for CDB contracts as authorized by statute. The period of debarment shall be not less than five years and may be permanent when warranted or as authorized by law [20 ILCS 3105/16].

c) Modification of Prequalification

CDB may modify or restrict a CM's prequalification as appropriate, including, but not limited to, one or more of the following:

Limiting the size or type of contracts for which a CM may submit proposals for a specified period of time, or until a current contract is substantially or fully complete.
Limiting the number of CDB contracts a CM may enter into for a specified period of time, or until a current contract is substantially or fully complete.
Limiting the aggregate dollar amount of contracts the CM may enter into with CDB.
Imposing limits as set forth in this subsection (c) pending performance on the CM's next CDB contract in instances where the CM has no current CDB contracts.

d) Conditional Prequalification

CDB may condition prequalification (which may be otherwise limited) on the CM's successful utilization of a management plan, evaluations, conferences, or other methods designed to achieve satisfactory performance or compliance with contract requirements.

e) Suspension

CDB may suspend a CM firm or disqualify a CM firm temporarily from submitting for a CDB contract, for a period of time up to five years. The CM's failure to timely pursue administrative action as provided by Subpart D of this Part shall constitute consent of the CM to CDB's action.

44 Ill. Adm. Code 990.310 Causes for Suspension, Debarment, Modification of Prequalification, and Conditional Prequalification

CDB may determine a CM is not responsible and suspend, debar or otherwise modify a prequalification or issue a conditional prequalification based upon one or more of the following:

a) Failure to satisfactorily perform work on CDB contracts, private contracts, or other governmental contracts. (See also Section 990.330.)

b) Breach of the terms of a CDB contract, private contract, or other governmental contract. (See also Section 990.330.)

c) Making false or misleading statements or failing to disclose or update significant information in connection with CDB procedures or documents, including, but not limited to, the prequalification application.

e) Financial instability that may be evidenced by bankruptcy, failure to timely pay consultants, difficulty in obtaining acceptable insurance, attempts to assign contract proceeds, or other indications of serious business management deficiencies.

f) Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards, that results in the extraordinary expenditure of CDB resources.

h) Suspension, debarment, or limits on contracts by any other governmental body.

i) Any other cause of so serious or compelling a nature that it affects the responsibility of a CM.

44 Ill. Adm. Code 990.320 Nullification of Prequalification

When CDB determines that a CM has knowingly made a material misrepresentation in its application for prequalification, the CM may not reapply to CDB for a period of three years from the date of the determination of material misrepresentation.

a) CDB will notify the CM of the nullification. The CM may, within 30 days after notification, submit a written explanation with supporting documentation for CDB's review.

b) CDB may cancel awards or terminate any contracts awarded that were based upon the application with misrepresentations.

c) A material misrepresentation is made by knowingly submitting any untrue, misleading or deceptive information or document containing such information, or by the concealment, suppression or omission of any information, in or from an application, that causes CDB to act differently than it would have if it had known the undisclosed or true information.

44 Ill. Adm. Code 990.330 Failure to Satisfactorily Perform Work on or Breach of the Terms of Cdb Contracts, Private Contracts, or Other Governmental Contracts

CDB may take action upon prequalification for the CM's failure to satisfactorily perform work on or breach of the terms of CDB contracts private contracts, or other governmental contracts, such as, but not limited to, one or more of the following:

a) Failure to timely submit required documents and drawings according to the project schedule, causing a delay in the commencement, completion or close out of a project.

b) Failure to adhere to contractual document requirements.

c) Failure to adequately or timely notify CDB of project problems or failure to cooperate with other parties to the project to timely resolve problems.

d) Failure to timely or adequately submit budget and estimating documents.

e) Failure to meet quality standards applicable to the industry (e.g., obtaining or maintaining nationally or regionally recognized certification).

f) Failure to provide acceptable quality and quantity of staff to provide comprehensive project administration services, including field staff authorized to make timely field decisions on behalf of the firm.

g) Failure to provide proper personnel to facilitate proper and timely responses to requests for information in the field.

h) Failure to facilitate maintenance and submission of timely and adequate record drawings.

i) Failure to timely process change orders and contractor pay requests.

j) Failure to follow directives from CDB within the scope of the contract documents.

k) Failure to attend or to be properly prepared for project meetings.

m) Failure to submit proper pay or modification requests, in accordance with the contractual provisions, with adequate documentation of costs and pricing within conventional industry parameters for public contracts.

n) Failure to submit timely post-award documents, such as, but not limited to, bonds, certificates of insurance and MBE/FBE certifications.

o) Failure to cooperate with other parties to the project to timely resolve project problems.

p) Failure to meet the project schedule for any reason reasonably within the control of the CM.

q) Any other cause of so serious or compelling a nature that it affects the responsibility of the CM.

44 Ill. Adm. Code 990.340 Interim or Emergency Suspension or Modification Pursuant to Section 16 of the Capital Development Board Act

a) CDB may suspend or modify a CM's prequalification without a prior hearing or administrative procedure, as provided in Subpart D, for one or more of the following causes:

The public interest, safety or welfare requires suspension or modification.
An event or series of events, including, but not limited to:

A) The filing of an indictment or of formal charges by information (complaint) charging the firm or a key person with the firm with a crime.

B) Suspension or modification of a license or prequalification by another State agency, federal agency or other branch of government after hearing or by agreement.

C) Failure to comply with applicable laws.

D) Material breach of a contract, including, but not limited to, one or more of the causes set forth in Section 990.330.

E) Failure to satisfactorily perform work on or breach of a CDB contract, including, but not limited to, one or more of the causes set forth in Section 990.330 when:

i) The issue has been brought to the attention of firm management in writing;

ii) All levels of CDB construction administration have met with firm representatives and discussed the issue;

iii) CDB conveys to the CM what action or nonaction is necessary and in accordance with the contract documents;

iv) The CM willfully and unreasonably refuses to comply or to obtain consultants, personnel, or other resources that would enable it to comply.

b) When prequalification is suspended or modified pursuant to this Section, the CM will be notified in writing and, within 30 days after the notice, CDB will commence administrative procedures under Subpart D.

c) When prequalification is suspended or modified pursuant to subsection (a)(2)(E), if the CM cures the situation within 30 days after the notice, the suspension or modification will be rescinded by written notice to the CM. If CDB determines the CM is making substantial progress toward a cure within 30 days after the notice, CDB may extend in writing the 30-day period by up to an additional 60 days. If the CM cures the situation within the extended time period, the suspension or modification will be rescinded by written notice. In any case, when suspension or modification is rescinded, it will be removed from the CM's prequalification record. If the CM fails to cure the situation within 30 days or within the time extension, whichever is applicable, CDB will immediately commence administrative procedures under Subpart D.

44 Ill. Adm. Code 990.350 Denial of Prequalification

a) This Section is applicable to CMs who are one of the following:

First-time applicants for CDB prequalification.
Firms that sent a renewal application that arrived at CDB after the prequalification expiration date or that could not reasonably be processed before the expiration date.
Firms that sent a renewal application that was incomplete or insufficient, so that CDB could not reasonably process the application before the expiration date.

b) CMs described in subsection (a) will be considered to be new applicants to CDB. In the event that CDB denies prequalification or grants a conditional or modified prequalification, the CM may request administrative procedures under Subpart D, but shall not be entitled to an administrative hearing.

44 Ill. Adm. Code 990.400 General

44 Ill. Adm. Code 990.410 Violation of Cdb Order

If a CM is subject to a CDB order suspending or debarring the CM, nullifying or modifying prequalification, making prequalification conditional, or denying prequalification, and the CM violates the order in any manner, including, but not limited to, continuing to make submittals or bid on CDB projects, CDB may extend the term of suspension, debarment, nullification, modification or conditional prequalification, or otherwise limit or condition the ability to make submittals or bid on contracts with CDB.

44 Ill. Adm. Code 990.420 Denial of Award of Contract

Notwithstanding any other provisions in this Part, if CDB finds a CM non-responsible, CDB may deny the CM the award of a contract.

44 Ill. Adm. Code 990.430 Debarment

CDB may debar a CM to exclude it from submitting on CDB projects. CDB will consider debarment in cases so serious and egregious in nature that a permanent loss of submittal privileges may be warranted. In addition to the causes listed in Section 990.310, causes for debarment may include, but not be limited to, multiple or repetitive criminal convictions or multiple non-responsibility determinations. Following a period of debarment, when a CM submits a prequalification application to CDB, the application shall be deemed to be a first-time application rather than an application for renewal. A firm that has been debarred as a contractor or A/E (architectural/engineering) firm will automatically be debarred as a CM firm, and vice versa.

44 Ill. Adm. Code 990.440 Reapplication for Prequalification

When a CM submits a prequalification application to CDB following a denial, or during or following a period of debarment, suspension, nullification, modification of prequalification, or conditional prequalification, the CM must affirmatively demonstrate its responsibility, including demonstrating that the reason for the denial, or imposition of suspension, debarment, nullification, modification, or condition, has been remedied.

44 Ill. Adm. Code 990.450 Extension of Cdb Action

The effect of an action imposed under this Subpart by CDB will extend to all affiliates, branches, subsidiaries, divisions, or parent firms of the CM and to any firm in which the CM or its key persons have a legal or beneficial interest, unless CDB determines otherwise in writing.

44 Ill. Adm. Code 990.460 Effect on Current Contracts

Current CDB contracts may be terminated when a CM is determined to be non-responsible and it is in the public interest to do so, whether or not the non-responsibility has a direct connection with the current contract. Contracts may be terminated with or without further action on the CM's prequalification.

44 Ill. Adm. Code 990.470 Basis of Decisions

a) CDB shall make determinations as appropriate concerning the substance of a CM's business as opposed to its form and base its decisions on the substance. When a CM attempts to evade the effects of a possible or actual finding of non-responsibility by changes of address, multiple addresses, changes in personnel or their titles, formation of new companies, or other devices, CDB may take action pursuant to Section 990.300 and Subparts B and C of this Part.

b) CMs that are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing non-responsible firm will be declared non-responsible unless the new organization can demonstrate it was not set up for the purpose of avoiding an earlier declaration of non-responsibility.

44 Ill. Adm. Code 990.480 Settlement

Notwithstanding any provision of this Part, the parties to any contested matter concerning a CM's prequalification may at any time enter into an agreement to resolve responsibility issues by settlement.

44 Ill. Adm. Code 990.500 Review

When information that places a CM's responsibility in question comes to CDB's attention, CDB shall review the facts and documentation. If further inquiry is desirable, it may do such further inquiry, which may result in an informal CDB conference with the CM and its appropriate staff members.

44 Ill. Adm. Code 990.510 Notice of Cdb Action

Unless proceedings under Section 16 of the Capital Development Board Act [20 ILCS 3105/16] are justified, prior to suspending, conditioning, modifying or nullifying a CM's prequalification or debarring a CM, CDB will notify the CM in writing of its intention to take such action and the basis of the action, and will request that the CM attend an informal conference with CDB personnel. The CM may bring to the conference any documents, personnel, or other pertinent information that it wishes CDB to consider. The CM may bring its attorney to the conference, if desired. Within a reasonable time in advance of the conference, CDB shall furnish the CM with all information in its possession that it deems pertinent and shall advise the CM in writing that it has the right to inspect its prequalification file. Further conferences may be scheduled by agreement of CDB and the CM. The CM's failure to appear at the conference shall be construed to indicate the CM does not wish to contest the matter, and rights to further administrative proceedings shall be forfeited.

44 Ill. Adm. Code 990.520 Executive Director Decision and Request for Reconsideration

Following CDB's conference with the CM, the conference committee shall forward a recommendation to the CDB Executive Director. The CM will be notified in writing of the Executive Director's decision. Within 15 days after receipt of the Executive Director's decision, the CM may request the Executive Director's reconsideration in writing, including as attachments any and all supporting evidence not previously submitted. CDB shall respond to the request for reconsideration within 15 days after CDB's receipt.

44 Ill. Adm. Code 990.530 Hearings

Within 30 days after the CM's receipt of the Executive Director's decision on reconsideration, the CM may request a hearing in writing. All administrative procedures in this Subpart D must be exhausted before CDB will consider the request for a hearing. Hearings shall be conducted in accordance with Hearing Procedures (71 Ill. Adm. Code 100).

44 Ill. Adm. Code 990.540 Burden of Proof

a) Any determination pursuant to this Part may be made when CDB possesses documentation of one or more of the factors described in Section 990.310, 990.320 or 990.410.

b) Such documentation is the basis for a presumptive determination of non-responsibility. The CM is entitled to rebut the presumption, through procedures described in this Subpart, but the presumption will not be overturned unless the CM shows, by a preponderance of the evidence, that each factor cited by CDB in support of its determination of non-responsibility is not present. CDB's determinations are final and conclusive unless they are clearly erroneous, arbitrary, capricious or contrary to law.

Part 995 Prequalification of Design-Build Entities

44 Ill. Adm. Code 995.110 Purpose

The Capital Development Board design-build agreements shall be awarded only to design-build entities containing one or more firms prequalified with CDB under the A/E and/or contractor prequalification rules.

44 Ill. Adm. Code 995.120 Definitions

The following definitions shall apply to this Part:

"A/E Prequalification Rules" means 44 Ill. Adm. Code 980, the rules by which CDB prequalifies design professionals.

"CDB" means the Capital Development Board, the agency.

"Contract" or "Contract Requirements" consist of any and all provisions of the CDB Design-Build Contract.

"Contractor Prequalification Rules" means 44 Ill. Adm. Code 950, the rules by which CDB prequalifies firms as bidders on CDB construction projects.

"Design-Build" means a construction project delivery system that provides responsibility within a single contract for the furnishing of architecture, engineering, land surveying and related services as required, and the labor, materials, equipment and other construction services for the project.

"Design-Build Entity" or "DB" means any individual, sole proprietorship, firm, partnership, corporation, joint venture, or other legal entity that proposes to design and construct any public project under the Design-Build Procurement Act.

"Design Professional" means any individual, sole proprietorship, firm, partnership, corporation, or other legal entity that offers services under the Illinois Architecture Practice Act of 1989 [225 ILCS 305], the Professional Engineering Practice Act of 1989 [225 ILCS 325], the Structural Engineering Licensing Act of 1989 [225 ILCS 340], or the Illinois Professional Land Surveyor Act of 1989 [225 ILCS 330]. [30 ILCS 537/10]

"Prequalification" is the status granted by CDB to responsible A/E or contracting firms that permits them to make submittals on CDB projects or be awarded a CDB contract.

44 Ill. Adm. Code 995.130 Prequalification Required

DB entities desiring to enter into a DB contract with CDB must be prequalified with CDB under the A/E prequalification rules and/or the contractor prequalification rules prior to any submittal of qualifications or interest for a specific project and prior to entering a contractual relationship with CDB. For DB entities consisting of more than one independent firm (e.g., joint ventures or partnerships), each firm must be prequalified with CDB under the appropriate rule.

44 Ill. Adm. Code 995.150 Confidentiality

CDB may release to anyone the firm's prequalification status with CDB. However, neither the Performance Evaluations of the firm on a design-build project (DB PE) nor the DB's written responses to them shall be made available to any other person or firm, except as authorized by the Freedom of Information Act [5 ILCS 140/7(1)(b)(iii)].

44 Ill. Adm. Code 995.300 Responsibility and Prequalification

At any time, CDB may consider whether an action is warranted concerning a firm's prequalification based on the rules under which that firm was prequalified with CDB (44 IAC 950 and 44 IAC 980). Actions that may be taken are those listed in the respective A/E and Contractor Prequalification Rules.

a) Any action regarding suspension, debarment, modification of prequalification, or conditional prequalification of the DB entity or its design consultants or prequalified subcontractors will follow the rules under which that firm was prequalified with CDB.

b) Any actions CDB takes with regard to suspension, debarment, modification of prequalification, or conditional prequalification of a firm in regard to its actions as a DB entity or as a design consultant or subcontractor to a DB entity may also apply to its prequalification to do other (non-DB) work with CDB, unless CDB specifically restricts its action to apply to the entity's prequalification to participate in DB projects, in accordance with Section 995.400.

c) CDB may consider that action regarding suspension, debarment, modification of prequalification, or conditional prequalification is warranted against any one or more than one or all of the firms in a DB entity, including design consultants or CDB prequalified subcontractors. Such action may be warranted when the DB entity prepares a specification or drawing containing an error or omission, or commits a breach of contract so that it causes the project to be completed significantly late or at a higher cost.

d) Reasons for CDB to consider suspension, debarment, modification of prequalification, or conditional prequalification, in addition to those reasons set out in the respective A/E or Contractor Prequalification Rules, include a violation of the Illinois Procurement Code or failure to conform to the requirements of a design-build agreement, in accord with Section 50-65 of the Procurement Code.

44 Ill. Adm. Code 995.400 General

Suspension, debarment, nullification of prequalification, modification of prequalification, issuance of conditional prequalification, or denial of prequalification by CDB is also applicable to a DB's separate prequalification as an A/E or contractor with CDB, unless the circumstances are directly related to the design-build process and not to the type of performance provided as an A/E or contractor. In such instances, CDB will issue a written determination supporting its action.

44 Ill. Adm. Code 995.500 Review and Hearings

CDB will follow those procedures established in the rules under which the firm was prequalified (71 IAC 100).

Part 1000 Selection of Architects/Engineers (a/E)

44 Ill. Adm. Code 1000.100 Definitions

"Act" means the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

"A/E" means an individual or firm in the business of providing architectural, engineering or land surveying services as authorized by the Illinois Department of Financial and Professional Regulation.

"Board" means the seven-member Board of the Capital Development Board.

"CDB" means Capital Development Board, the agency.

"Chairperson" means the person delegated by the Executive Director to lead A/E selection committees.

"Executive Director" means the individual appointed by the Board to serve as the chief executive officer of CDB. (20 ILCS 3105/8)

"MBE/WBE/PBE/VBE" means a minority-owned business/women-owned business/business owned by a person with a disability/qualified veteran-owned small business or qualified service-disabled veteran-owned small businesses as those terms are defined in Section 2 of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575] and Section 45-57 of Illinois Procurement Code [30 ILCS 500].

"Statement of qualifications" means the information supplied by the A/Es that cites their specific experience and expertise that may qualify the A/E to provide the services requested.

"Total project cost" means the complete cost of all components of construction project, including the cost for the A/E; all construction work; contingency amounts; and furniture, fixtures, and equipment, if applicable.

"User agency" means the agency or unit of government for which the architectural/engineering firm is being selected.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.110 Purpose

CDB shall procure architectural, engineering, and land surveying services in compliance with the Architectural, Engineering, and Land Surveying Qualification Based Selection Act [30 ILCS 535].

44 Ill. Adm. Code 1000.120 Selection Procedures

a) CDB shall select three A/Es qualified to provide the professional services for a specific project, unless fewer than three qualified firms submit a statement of qualifications. These A/Es shall be ranked in order of qualifications. CDB's rankings shall be presented to the Board for approval. The Board may approve or deny the rankings as presented. Board approval of these A/Es shall be final and binding.

b) In the event that fewer than three A/Es submit statements of qualifications for a specific project, if CDB determines that one or both are qualified to perform the services, CDB may proceed with the selection process.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.130 Selection Committee

The Chairperson shall appoint a committee to recommend to the Executive Director and the Board a list of A/Es qualified to perform the required services. This committee may be established for each selection or may be established for a series of selections. The committee may be composed of standing members and rotating members from CDB staff. In addition to the CDB staff members, the Chairperson may request representatives from the user agency or members of the public to be members of the committee.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.140 Evaluation Procedures

a) In making its recommendations, the selection committee will consider, among others:

The A/E's qualifications.
The ability of professional personnel submitted by the A/E.
The A/E's past record and experience.
The prior performance of the A/E on CDB professional services agreements.
The willingness of the firm to meet time requirements.
The location of the project relative to the firm's place of business.
The results of preliminary evaluations performed by CDB staff.
The current work load of the A/Es and their prior selections by CDB.
References.
Interviews conducted with the A/Es.
Minority, women, persons with disabilities or veteran ownership of the A/E and the consultants.

b) For each project with an estimated total project cost of $1,000,000 or more, the CDB Diversity Contracting Unit will set MBE/WBE/PBE/VBE participation goals with approval of the Commission on Equity and Inclusion. Goals will be established in conformance with procedures set by the Commission on Equity and Inclusion. The goals for each project will be described in the CDB Professional Services Bulletin.

c) In no case shall the committee, prior to selecting an A/E for negotiation, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.150 Preliminary Evaluations

CDB may make appointments for the performance of a preliminary evaluation (prescreening). The prescreening provides a preliminary ranking of the A/Es for the committee's consideration. This prescreening shall consider, among others, the relevant project experience of the prospective A/Es and the expertise and experience of the firm and its consultants' staff to be assigned to the project if the firm is selected.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.160 Interviews

CDB requires the selection committee to conduct interviews when the estimated value of the basic services fee exceeds $500,000. The Chairperson, with approval of the Executive Director may choose to conduct interviews for smaller projects under special circumstances. Unless fewer than three qualified firms submit a statement of qualifications, a minimum of three firms will be interviewed. For projects that are narrow in scope or low in complexity, the Executive Director in consultation with the Board may exempt any contract from requiring interviews.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.170 Delegation of Evaluations

CDB may delegate the evaluation of prospective A/Es to a user agency, including, but not limited to, a university, college, or community college. CDB or the user agency may request that a member of CDB's staff be a voting or nonvoting member of the user agency's evaluation committee. The user agency shall transmit its recommendations to CDB for review and approval of the Board. CDB will provide a form for submitting the recommendations. Transmittal to CDB shall include a letter with a certification statement requiring an authorized signature verifying that the selections were made in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535], the Local Government Professional Services Selection Act [50 ILCS 510], and the Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575], as applicable. CDB may request the user agency make other recommendations if the firm(s) recommended are not acceptable to CDB.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.180 Public Notice

a) Unless it is a small contract under Section 45 of the Act or contract for emergency services under Section 50 of the Act, public notice by CDB for A/E services shall include an abstract of the services required for each project and the required expertise of the A/E to be considered. This public notice shall also include the statement of qualifications form to be completed for each project as well as the date and time by which the statement of qualifications must be submitted to CDB.

b) Notice shall be posted on CDB's website (http://cdb.illinois.gov) and may be published in the official State newspaper or otherwise made available in print.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.190 Submittal Requirements

a) All A/Es submitting a statement of qualification for a specific project shall be prequalified with CDB prior to the date and time that the submittals are due. Failure to be prequalified will result in rejection of the submittal.

b) If the A/E will be subcontracting part of the services to professional consultants, those professional consultants that will be performing architectural, engineering or land surveying professional services shall also be prequalified with CDB prior to the date and time that the submittals are due. Failure of the professional consultants to be prequalified shall result in rejection of the A/E's submittals.

c) The A/E shall clearly indicate the anticipated percentage of the services that will be performed by each listed professional consultant. Failure to list these percentages may result in rejection of the submittal.

d) The submittal shall include the names of persons who will perform the services, including their project assignment or duties, as well as a resume of their experience and expertise that qualifies them to perform the assignment. This includes the listed professional consultant's designated staff.

History

Source: Amended at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.200 Small Projects (repealed)

History

Source: Repealed at 49 Ill. Reg. 1578, effective January 27, 2025

44 Ill. Adm. Code 1000.210 Emergency Projects (repealed)

History

Source: Repealed at 49 Ill. Reg. 1578, effective January 27, 2025

Part 1025 Selection of Construction Managers

44 Ill. Adm. Code 1025.100 Definitions

"Board" means the seven member Board of the Capital Development Board.

"CDB" means Capital Development Board, the agency.

"Code" means the Illinois Procurement Code [30 ILCS 500].

"Construction management services" includes, but is not limited to:

"Construction manager" or "CM" means any individual, sole proprietorship, firm, partnership, corporation, or other legal entity providing construction management services for the Board and prequalified by the State in accordance with 30 ILCS 500/33-10.

"Statement of Qualifications" means the information supplied by the CM that cites the specific experience and expertise that may qualify the CM to provide the services requested.

"User agency" means the agency or unit of government for which the architectural/engineering firm is being selected.

44 Ill. Adm. Code 1025.110 Purpose

CDB shall procure construction management services in compliance with Article 33 of the Code (Construction Management Services) [30 ILCS 500/Art. 33].

44 Ill. Adm. Code 1025.120 Selection Procedures

a) CDB shall select three CMs qualified to provide the professional services for a specific project. These CMs shall be ranked in order of qualifications. Board approval of these CMs shall be final and binding.

b) In the event that fewer than three CMs submit statements of qualifications for a specific project, if CDB determines that one or both are qualified to perform the services, CDB may proceed with the selection process.

44 Ill. Adm. Code 1025.130 Selection Committee

The CDB Executive Director shall appoint an agency employee to serve as chair of a selection committee. The selection committee chairman shall appoint a committee to recommend to the Executive Director and the Board a list of CMs qualified to perform the required services. This committee may be established for each selection and may be composed of standing members and rotating members from CDB staff. In addition to the CDB staff members, a representative from the user agency and one or more public members may be requested to be members of the committee.

44 Ill. Adm. Code 1025.140 Evaluation Procedures

a) In making its recommendations, the selection committee may consider, among other items:

The CM's qualifications.
The training and experience of the personnel submitted by the CM.
The CM's past record and experience.
The prior performance of the CM on CDB projects, determined by review of the CM Performance Evaluations on previous CM projects, Performance Evaluations of the CM firm on projects in which it participated as an A/E or contractor, and any other related material.

B) In addition to subsection (a)(4)(A), CDB reserves the right to evaluate a firm during a project when performance issues warrant that action.

The willingness of the firm to meet time requirements.
The location of the project relative to the firm's place of business.
The results of preliminary evaluations performed by CDB staff.
The current work load of the CMs and their prior selections by CDB.
References.
Interviews conducted with the CMs.

b) Before beginning review of the CM's statements of qualifications, the committee shall prepare a table of the factors the CMs will be rated on and the weight to be assigned to each factor. The table of factors, and the scores of each reviewed submittal, will be kept on file for no less than two years from the date of the selection.

c) In no case shall the committee, prior to selecting a CM for negotiation, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation.

44 Ill. Adm. Code 1025.150 Preliminary Evaluations

CDB may appoint staff members to perform a preliminary evaluation (prescreening) to provide a preliminary ranking of the CMs for the committee's consideration. This prescreening shall consider, among others, the relevant project experience of the prospective CMs and the expertise and experience of the firm and its staff to be assigned to the project if the firm is selected.

44 Ill. Adm. Code 1025.160 Interviews

CDB requires the selection committee to conduct interviews when the estimated value of the CM's basic services fee exceeds $300,000. The Executive Director may choose to conduct interviews for smaller projects under special circumstances. In all cases, a minimum of three firms will be interviewed. The Executive Director, in consultation with the Board, may exempt any contract from requiring interviews.

44 Ill. Adm. Code 1025.180 Public Notice

a) When the services of a CM are required, CDB shall publish a request for proposals setting forth the nature of the projects.

b) This public notice shall include a description of the services required and a description of each project. This public notice shall also include the statement of qualifications form to be completed for each project, as well as the date and time by which submittal of the statement of qualifications will be accepted.

c) The public notice shall be published at least 14 days prior to the date for submittal of the statement of qualifications.

d) Notice shall be published in CDB's Procurement Bulletin and may be published in the official State newspaper or otherwise made available in print. In addition, the request for proposal will be mailed to each firm prequalified under 30 ILCS 500/33-15. When CDB establishes additional criteria for special projects under 44 Ill. Adm. Code 900.140 (Prequalification of Construction Mangers), the notice shall be published at least 30 days before the date the special prequalification application or the statement of qualifications is due.

e) Prequalification standards may be revised to be more closely related to the needs or environment of the special project, e.g., required firm and/or personnel experience may be limited to a particular size of project or to experience in a particular environment such as correctional facility work.

44 Ill. Adm. Code 1025.190 Submittal Requirements

a) All CMs submitting statements of qualifications for a specific project shall be prequalified with CDB as CMs prior to the date and time that the submittals are due. Failure to be prequalified will result in rejection of the submittals.

b) The submittal shall include the names of persons who will perform the services, including their project assignment or duties, as well as a resume of the experience and expertise that qualifies them to perform the assignment.

44 Ill. Adm. Code 1025.200 Small Projects

For contracts whose value is less than $25,000, CDB may select any prequalified CM in accordance with Section 33-35 of the Code.

44 Ill. Adm. Code 1025.210 Emergency Projects

CDB may immediately select a CM when it is in the best interest of the State or in emergencies to protect public health or safety in accordance with Section 33-40 of the Code.

44 Ill. Adm. Code 1025.220 Procurement Limitations

a) A CM cannot participate in a selection process if it or a substantially affiliated firm is under contract or in the process of contracting with CDB for other goods or services required for the project and the CM's duties will involve or relate to those goods or services.

b) A CM selected to provide construction management services, or a substantially affiliated firm, may not bid on or otherwise be awarded a construction contract for the project.

c) Notwithstanding the above, when it is determined in writing to be in the State's best interest, the CM may provide or perform, directly or through unrelated contractors, basic services for which reimbursement is provided in the general conditions of the CM contract, or any other goods or service that does not conflict with or give the appearance of conflicting with the CM's duties.

d) A firm is substantially affiliated if any one or more of the individuals with more than 5% ownership interest and/or any officer or director of the CM firm and/or any individual authorized to sign bids, proposals or contracts for the CM firm owns or controls more than 5% of the affiliated firm and/or holds any of the above positions with the affiliated firm, or the affiliated firm shares more than 5% common ownership with the CM.

44 Ill. Adm. Code 1025.230 Publication of Award

The names of selected firms and the respective projects shall be published in CDB's Procurement Bulletin within 30 days after the selection and award.

Part 1030 Selection of Design-Build Entities

44 Ill. Adm. Code 1030.100 Definitions

"Act" means the Design-Build Procurement Act [30 ILCS 537].

"Board" means the Capital Development Board.

"CDB" means Capital Development Board, the agency.

"Design-Bid-Build" means the traditional delivery system used on public projects in this State that incorporates the Architectural, Engineering, and Land Surveying Qualification Based Selection Act [30 ILCS 535] and the principles of competitive selection in the Illinois Procurement Code [30 ILCS 500].

"Design-Build" or "DB" means a delivery system that provides responsibility within a single contract for the furnishing of architecture, engineering, land surveying and related services as required, and the labor, materials, equipment, and other construction services for the project.

"Design-Build Entity" or "DB Entity" means any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that proposes to design and construct any public project under the Act.

"Design Professional" or "A/E" means any individual, sole proprietorship, firm, partnership, corporation, or other legal entity that offers services under the Illinois Architecture Practice Act of 1989 [225 ILCS 305], the Professional Engineering Practice Act of 1989 [225 ILCS 325], the Structural Engineering Licensing Act of 1989 [225 ILCS 340], or the Illinois Professional Land Surveyor Act of 1989 [225 ILCS 330].

"Evaluation Criteria" means the requirements for the separate phases of the selection process as defined in the Act and may include the specialized experience, technical qualifications and competence, capacity to perform, past performance, experience with similar projects, assignment of personnel to the project, and other appropriate factors. Price may not be used as a factor in the evaluation of Phase 1 proposals.

"Scope and Performance Criteria" means the requirements for the public project, including, but not limited to, the intended usage, capacity, size, scope, quality and performance standards, life-cycle costs, and other programmatic criteria that are expressed in performance-oriented and quantifiable specifications and drawings that can be reasonably inferred and are suited to allow a DB entity to develop a proposal.

"User Agency" means the agency or unit of government for which the architectural/engineering firm is being selected.

44 Ill. Adm. Code 1030.110 Purpose

CDB shall procure DB services in compliance with the Act.

44 Ill. Adm. Code 1030.120 Written Determination

The probability that the DB procurement method will be in the best interests of the State by providing a material savings of time or cost over the design-bid-build or other delivery system.
The type and size of the project and its suitability to the DB procurement method.
The ability of CDB to define and provide comprehensive scope and performance criteria for the project.
The best interests of the State will be served by entering into a DB contract for the project.
The project will comply with the disadvantaged business and equal employment practices of the State as established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act [30 ILCS 575] and Section 2-105 of the Illinois Human Rights Act [775 ILCS 5/2-105.

b) Within 15 days after the initial determination, CDB will provide an advisory copy of the written determination to the Procurement Policy Board, and shall maintain the full record of determination for 5 years.

44 Ill. Adm. Code 1030.130 Public Notice

a) CDB shall issue a notice of intent to receive requests for proposals for a DB project at least 14 days before issuing the request for the proposal. A brief description of the proposed procurement shall be included in the notice.

b) The notice of intent shall be posted on CDB's Internet Site (www.cdb.state.il.us) and may be published in the official State newspaper or otherwise made available in print.

c) The agency may also publish the notice in related construction industry service publications.

44 Ill. Adm. Code 1030.140 Request for Proposal

a) CDB shall provide a copy of the request for proposal to any party requesting a copy.

b) An RFP shall be prepared by CDB for each project and will contain the following information:

The Capital Development Board as the issuing agency;
A preliminary schedule for the completion of the contract;
The proposed budget for the project, the source of funds, and the currently available funds at the time the RFP is submitted;
Prequalification criteria for DB entities wishing to submit proposals. The criteria shall include CDB's normal prequalification, licensing, registration, and other requirements and any additional criteria deemed necessary by CDB;
Material requirements of the contract, including the proposed terms and conditions, required performance and payment bonds, insurance, the entity's plan to comply with the utilization goals for business enterprises established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act and with Section 2-105 of the Illinois Human Rights Act, and any other requirements deemed important by CDB;
The scope and performance criteria:

A) Shall be in sufficient detail and contain adequate information to reasonably apprise the qualified DB entities of CDB's overall programmatic needs and goals, including criteria and preliminary design plans, general budget parameters, schedule, and delivery requirements;

B) Shall also include a description of the level of design to be provided in the proposals, including the scope and type of renderings, drawings, and specifications that will be required by CDB to be produced by the DB entities;

The evaluation criteria for each phase of the solicitation, including relative importance or weighting factor of each item (see Sections 1030.170, Phase 1 Evaluation, and 1030.190, Phase 2 Evaluation);
The number of entities (no fewer than 2 and no more than 6) that will be considered for the technical and cost evaluation phase (Phase 2);
The submittal schedule:

A) For projects estimated to cost less than $10 million, at least 21 days shall be allowed to prepare and submit Phase 1 proposals after the date of the issuance of the RFP.

B) For projects estimated to cost more than $10 million, at least 28 days shall be allowed to prepare and submit Phase 1 proposals after the date of the issuance of the RFP.

C) For all projects, at least 30 days shall be allowed to prepare and submit Phase 2 proposals after the selection of entities from the Phase 1 evaluation is completed;

Any other relevant information that CDB chooses to supply.

c) The DB entity shall be entitled to rely upon the accuracy of information included in the request for proposal in the development of its proposal.

44 Ill. Adm. Code 1030.150 Preparation of Scope and Performance Criteria

b) The design professional and/or officers of the design firm that prepares the scope and performance criteria are prohibited from participating in any DB entity proposal for the project.

44 Ill. Adm. Code 1030.160 Selection Committee

a) CDB shall establish a committee to evaluate and select the DB entity.

b) The committee shall consist of 5 or 7 members and include at least one licensed design professional and 2 members of the public.

Public members may not be employed by or associated with any firm holding a contract with CDB.
One public member shall be nominated by associations representing the general design or construction industry and one member shall be nominated by associations that represent minority or female-owned design or construction industry businesses.
The licensed design professional may be an employee of CDB or a representative of the firm that prepared the scope and performance criteria.

c) The selection committee may be designated for a set term or for the particular project, subject to the RFP.

d) The members of the selection committee must certify for each RFP that no conflict of interest exists between the members and the DB entities submitting proposals. If a conflict exists, the member must be replaced before any review of proposals.

44 Ill. Adm. Code 1030.170 Phase 1 Evaluation

a) In Phase 1, CDB will evaluate and shortlist the DB entities based on qualifications submitted in response to the RFP.

b) Evaluation shall be based on the prequalification requirements, evaluation criteria and relative importance or weighting of evaluation criteria as set forth in the RFP.

c) Proposals shall not be reviewed until after the deadline for submission has passed.

d) Proposals must meet all material requirements of the RFP or they may be rejected as non-responsive.

e) CDB shall have the right to reject any and all proposals.

f) CDB shall maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

g) Phase 1 evaluation criteria shall include:

experience of personnel;
successful experience with similar project types;
financial capability in relation to the size of the project;
timeliness of past performance;
experience with similarly sized projects;
successful reference checks of the firm;
commitment to assign personnel for the duration of the project;
qualifications of the entity's design consultants;
CDB prequalification in good standing of any subcontractor proposed to perform any of the 5 subdivisions of work defined in Section 30-30 of the Illinois Procurement Code;
Ability or past performance in meeting or exhausting good faith efforts to meet the utilization goals for business enterprises established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act and with Section 2-105 of the Illinois Human Rights Act;
Other relevant criteria deemed necessary by CDB.

h) CDB will eliminate any DB entity from consideration for evaluation or award if the entity has any pecuniary interest in the project or has other relationships or circumstances, including, but not limited to, long-term leasehold, mutual performance, or development contracts with CDB, that may give the DB entity a financial or tangible advantage over other DB entities in the preparation, evaluation, or performance of the DB contract or that create the appearance of impropriety.

i) CDB will not consider any proposal that does not include the entity's plan to comply with the requirements established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act and with Section 2-105 of the Illinois Human Rights Act .

j) CDB will publish the names of all DB entities submitting Phase 1 proposals on CDB's website in the next Professional Services Bulletin after the deadline for submission.

44 Ill. Adm. Code 1030.180 Shortlist

b) At its discretion, CDB may create a shortlist of fewer than the maximum number allowed by the RFP.

c) CDB shall notify in writing the entities selected for the shortlist.

The notification shall commence the period for preparation of Phase 2 submittals as listed in the RFP.
CDB may extend the period beyond that listed in the RFP, at its discretion, by including the new deadline in the written notification.

d) All DB entities selected for Phase 2 evaluation shall be published on CDB's website in the next Professional Services Bulletin after that determination.

44 Ill. Adm. Code 1030.190 Phase 2 Evaluation

a) In Phase 2, CDB will evaluate and rank the selected DB entities based on their technical and cost proposals.

b) Evaluation shall be based on the technical and cost submission components and relative importance or weighting of the technical and cost submission components as set forth in the RFP.

c) Proposals shall not be reviewed until after the deadline for submission has passed.

d) Proposals must meet all material requirements of the RFP or they may be rejected as non-responsive.

e) CDB shall have the right to reject any and all proposals.

f) CDB shall maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

g) CDB shall include the following criteria in the Phase 2 technical evaluation of DB entities:

compliance with objectives of the project;
compliance of proposed services to the RFP requirements;
quality of products or materials proposed;
quality of design parameters;
design concepts;
innovation in meeting the scope and performance criteria;
constructability of the proposed project;
other relevant criteria deemed necessary by CDB.

h) CDB shall include the following criteria in every Phase 2 cost evaluation:

total project cost;
construction costs;
time of completion;
other relevant criteria deemed necessary by CDB;
a total project cost criteria weighting factor of 25%.

44 Ill. Adm. Code 1030.200 Submission of Proposals

a) Proposals must be properly identified and sealed.

b) Phase 1 proposals shall include a list of all design professionals and other entities as defined in Section 30-30 of the Illinois Procurement Code to which any work may be subcontracted during the performance of the contract.

c) Phase 1 proposals shall include a list of all entities that will perform any of the 5 subdivisions of work defined in Section 30-30 of the Illinois Procurement Code.

d) Phase 2 proposals shall include a bid bond and security in the format and amount as designated in the RFPs.

e) Phase 2 proposals shall contain a separate sealed envelope with the cost information within the overall proposal submission.

f) The drawings and specifications of the proposal shall remain the property of the DB entity.

g) Proposals may be withdrawn prior to evaluation for any cause. After evaluation begins by CDB, clear and convincing evidence of error is required for withdrawal.

44 Ill. Adm. Code 1030.210 Interviews

CDB may choose to conduct interviews when project complexity or other special circumstances warrant doing so. In such cases, all firms on the Phase 2 shortlist will be interviewed. These circumstances, if known, will be included in CDB's initial written determination (Section 1030.120) and the interview requirement will be part of the original RFP. If circumstances become known later, CDB will amend its written determination and notify the Phase 2 short list entities by written amendment of the RFP.

44 Ill. Adm. Code 1030.220 Small Projects

In any case in which the total overall cost of the project is estimated to be less than $10 million, CDB may combine the two-phase procedure for submittals into one combined step, provided that all the requirements of evaluation are performed in accordance with this Part.

44 Ill. Adm. Code 1030.230 Award

a) CDB may award the contract to the highest overall ranked entity based on the Phase 2 submissions.

b) Notice of award shall be made in writing. Unsuccessful entities shall also be notified in writing.

c) CDB may not request a best and final offer after the receipt of proposals.

d) CDB may negotiate with the selected DB entity after award but prior to contract execution for the purpose of securing better terms than originally proposed, provided that the salient features of the RFP are not diminished.

44 Ill. Adm. Code 1030.240 Reports and Evaluations

a) CDB shall require each selected DB entity to submit a written report at the end of every 6 month period following the contract award, and again prior to final contract payout and closure, detailing its efforts and success in implementing the entity's plan to comply with the utilization goals for business enterprises established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act and the provisions of Section 2-105 of the Illinois Human Rights Act.

b) If the entity's performance in implementing the plan falls short of the performance measures and outcomes set forth in the plans submitted by the entity during the proposal process, CDB shall require a detailed written report, informing the General Assembly and the Governor whether and to what degree the DB entity promoted the utilization goals for business enterprises established in the Business Enterprise for Minorities, Females, and Persons with Disabilities Act and the provisions of Section 2-105 of the Illinois Human Rights Act.

44 Ill. Adm. Code 1030.250 Federal Requirements

CDB will comply with federal law and regulations and take all necessary steps to adapt the rules, policies, and procedures to remain eligible for federal aid.

Chapter XIII State Board of Education

Part 1110 Education Purchasing Program

44 Ill. Adm. Code 1110.10 Purpose and Scope

The purpose of this Part is to create an education purchasing program and establish the process by which the State Board of Education (ISBE) will certify education purchasing contracts and identify and define key categories for such contracts in accordance with Section 28A-10 of the School Code [105 ILCS 5/28A-10].

44 Ill. Adm. Code 1110.20 Definitions

"Contracting entity" means a local government entity established pursuant to the laws of Illinois or another state, an agency of the State of Illinois or another state, a federal government entity, a not-for-profit entity established pursuant to the laws of Illinois or another state, a for-profit entity established pursuant to the laws of Illinois or another state, or a cooperative entity consisting of any two or more of the foregoing entities.

"Due advertisement" means public notice published at least 10 days before the bid date in a newspaper of general circulation in the locality of the contracting entity, or public notice otherwise determined by the State Superintendent of Education to provide notification of the bidding opportunity to a wide variety of potential vendors (e.g., on websites maintained by contracting entities or in trade magazines or other publications designed for targeted audiences).

"Educational entity" means a school district, cooperative entity made up of multiple school districts, regional office of education, or charter school.

"Education purchasing contract" means a contract that is procured and negotiated by a contracting entity or a statewide education master contract negotiated by the State Board of Education, certified pursuant to this Part, and made available by ISBE to educational entities.

"Services" means the furnishing of labor, time or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance.

"Statewide education master contract" shall mean a contract that is procured and negotiated by ISBE and made available to educational entities.

"Supplies" means all personal property, including but not limited to equipment, materials, and printing, but excluding insurance, and the financing of those supplies.

44 Ill. Adm. Code 1110.30 State Education Purchasing Entity

ISBE shall act as the State education purchasing entity pursuant to Section 28A-10 of the School Code [105 ILCS 5/28A-10].

44 Ill. Adm. Code 1110.35 Procurement of Statewide Education Master Contracts

When ISBE procures a statewide education master contract, the procurement shall rely upon the Board's authority under its rules for Procurement by the State Board of Education (44 Ill. Adm. Code 1105) and shall be accomplished in accordance with the requirements of that Part.

44 Ill. Adm. Code 1110.40 Certification of Education Purchasing Contracts

The State Superintendent of Education shall review each potential education purchasing contract as described in this Section for the purpose of determining whether it was procured in a manner that is comparable in all material respects to the requirements of the Illinois Procurement Code [30 ILCS 500] and Section 10-20.21 of the School Code [105 ILCS 5/10-20.21], i.e., in a manner that makes the contract suitable for use by educational entities.

a) Subject to the provisions of Section 1110.80 of this Part, an education purchasing contract for supplies may be certified if the State Superintendent determines that the contract was awarded by the contract entity:

to the lowest responsible bidder;
considering conformity with specifications, terms of delivery, quality and serviceability; and
after due advertisement.

b) Subject to the provisions of Section 1110.80 of this Part, an education purchasing contract for services may be certified either on the basis set forth in subsection (a) of this Section or if the State Superintendent determines that the contract was awarded by the contracting entity through a process consisting of all of the following elements:

solicitation of proposals through a request for proposals setting forth evaluation factors and stating the relative importance of price and other evaluation factors;
due advertisement of the solicitation;
separate evaluation and ranking of the price and non-price items of the proposals; and
award to the responsible offeror whose proposal is determined to be most advantageous to the contracting entity, taking into consideration price and the other evaluation factors set forth in the request for proposals.

c) No contract shall be certified as an education purchasing contract or a statewide education master contract unless:

the scope of the contract permits participation by governmental entities (including educational entities) beyond the original contracting entity;
the vendor consents; and
the terms of the contract can be extended to other governmental entities without substantially modifying the range of supplies or services offered through the contract.

44 Ill. Adm. Code 1110.50 Participation by Educational Entities

a) An educational entity that elects to participate in one or more contracts pursuant to this Part shall be required to register with ISBE or a designee and agree to abide by all the terms of any contract joined. Before soliciting bids or awarding contracts for supplies, materials, equipment, or services, an educational entity may review education purchasing contracts and consider them as bids. The educational entity may, without soliciting additional bids, purchase supplies, materials, equipment, or services through a certified education purchasing contract or statewide education master contract by following the specific procedure established within each contract.

b) Participation in contracts under this Part shall be at the sole option of educational entities, and educational entities shall be solely responsible for any obligations incurred as a result of their participation.

44 Ill. Adm. Code 1110.60 Provision of Information and Definition of Key Categories

ISBE shall provide contracting information and pricing for certified education purchasing contracts and statewide education master contracts on the agency's website and through additional means specifically designed to reach administrators of educational entities. On the agency's website, ISBE shall:

a) identify and define the categories of certified education purchasing contracts and statewide education master contracts, which shall be based upon input received from school district business officials and regional offices of education and may include, but need not be limited to, office supplies, classroom furniture, maintenance services, and accounting services;

b) describe the process for educational entities' participation in education purchasing contracts or statewide education master contracts; and

c) indicate for each contract how the vendor may be contacted and provide other information relevant to participation in that contract, if any.

44 Ill. Adm. Code 1110.70 Process for Submitting Contracts for Certification

At least once each fiscal year, the State Superintendent shall identify the categories under consideration at that time and establish a timeframe during which applications for the certification of education purchasing contracts will be accepted. Any party to an education purchasing contract may submit the contract for review and consideration through this application process. In addition to a copy of the contract, the party making the submission shall provide:

a) Evidence of consent by the other party to the contract for certification of the contract by ISBE;

b) Sufficient information to demonstrate that the contract was awarded through a process meeting the criteria set forth in Section 1110.40(a) of this Part, which shall include, but need not be limited to:

the request for proposals or invitation for bids that was used to procure the contract;
evidence of due advertisement of the request for proposals or invitation for bids; and
a certification from the procuring entity or other evidence that the contract was awarded to the lowest responsible bidder, considering conformity with specifications, terms of delivery, quality, and serviceability;

c) A certification that the contract was procured in conformance with the requirements that apply in the locality of the contracting entity, including a specific statutory or regulatory citation to those requirements;

d) An indication of the Illinois educational entities the vendor is able and willing to serve;

e) A description of the range of supplies or services available through the contract;

f) Information on the level of customer service that will be offered to educational entities participating in the contract;

g) Evidence that the vendor has adequate financial, organizational, and technical resources to administer the contract;

h) A description of the process by which educational entities may participate in the contract; and

i) Certifications, assurances, and/or additional information that the State Superintendent may require in order to verify any information reported by the applicant or to otherwise fulfill ISBE's duties with respect to administration of the education purchasing program.

44 Ill. Adm. Code 1110.80 Selecting Contracts for Certification

a) The State Superintendent shall review each application received and determine whether each contract meets the criteria set forth in Section 1110.40 of this Part. Of those meeting the criteria, the State Superintendent may select one or more contracts for certification based upon the following factors:

The number of educational entities eligible to participate in the contracts that are eligible for certification;
The qualifications of the vendors involved in the eligible contracts;
The level of serviceability of the eligible contracts;
The quality of the supplies or services offered through the eligible contracts and the extent to which the supplies or services are appropriate for use by educational entities;
The comparative extent to which the costs of supplies or services are discounted, based on a standard index or other objectively verifiable criterion;
The contracting entity's use of businesses owned by minorities, females, and persons with disabilities to provide supplies or services under the contract;
The simplicity of the process for educational entities' participation in the contract; and
The extent to which resources of ISBE would be needed for overseeing the administration of the contract through the education purchasing program.

b) When choosing among two or more substantially similar contracts for certification, the State Superintendent shall give preference to contracts awarded to Illinois-based companies or, if no eligible contract involves an Illinois-based company, to the contract with the company employing the largest number of Illinois residents.

c) The State Superintendent shall base the determination regarding the number of eligible contracts that will be certified in each category at any given time on adequate coverage of the various geographic areas of the State and the provision of an adequate range of supplies and services to meet the needs of Illinois educational entities.

44 Ill. Adm. Code 1110.90 Certification of Other Governmental Entities' Cooperative Purchasing Programs

The State Superintendent may at any time certify contracts offered through other cooperative purchasing programs developed by agencies of the State of Illinois, Illinois public universities, regional offices of education, or other governmental entities upon determining that the contracts offered through one or more of these cooperative purchasing programs meet the criteria for certification set forth in Section 1110.40 of this Part.

44 Ill. Adm. Code 1110.100 Evaluation of Education Purchasing Contracts

At least once every five years, the State Superintendent shall evaluate each education purchasing contract to determine whether the vendor's performance is consistent with the information and standards provided to ISBE at the time of certification. Based upon this determination, the State Superintendent shall either re-certify the education purchasing contract for a period of time not to exceed five years or withdraw the contract's certification and no longer allow participation in that contract through the education purchasing program.

44 Ill. Adm. Code 1110.110 Withdrawal of Certification

a) In addition to the basis for withdrawing certification set forth in Section 1110.100 of this Part, the State Superintendent shall withdraw the certification of an education purchasing contract at any time if:

the vendor has failed to perform in accordance with the terms and provisions of the contract while providing supplies or services to Illinois educational entities;
the contract has been terminated or has expired by its terms; or
the State Superintendent determines, from the point of view of the contract's benefit to educational entities, that:

A) an amendment to the contract has substantially and negatively modified the contract's terms or the range of supplies or services offered through the contract; or

B) an amendment to the contract has substantially and negatively affected the terms of delivery, quality, or serviceability of the supplies or services offered through the contract.

b) The State Superintendent shall use the web-based resources of ISBE and other means designed to reach educational entities to notify them when certification of a contract under this Part is withdrawn.

An educational entity that has commenced a transaction under an education purchasing contract may complete that transaction notwithstanding any action by the State Superintendent to remove the contract's certification.
No new transactions may be commenced under a contract whose certification has been withdrawn.

Chapter XIV Comptroller

Part 1120 Office of the Comptroller Standard Procurement

44 Ill. Adm. Code 1120.1 Title

This Part may be cited as the Comptroller's Procurement Rules.

History

Source: Renumbered from Section 1120.01 to 1120.1 at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5 Policy

All procurements for the Office of the Comptroller (IOC) shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with statute, this Part and other applicable rules.

History

Source: Renumbered from Section 1120.05 to 1120.5 at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.8 Illinois Procurement Code

Articles 1, 15, 20, 25, 30, 33, 35, 40, 43, 45, 50 and 53 of the Illinois Procurement Code [30 ILCS 500/Arts. 1, 15, 20, 25, 30, 33, 35, 40, 43, 45, 50 and 53] (the Code) will be referenced in this Part. The Office of the Comptroller shall procure its needs in a manner substantially in accordance with the requirements of the Code. [30 ILCS 500/1-30(a)] For purposes of this Part, any reference in the Code or this Part to the Chief Procurement Officer (CPO) means the employee appointed by the Comptroller to serve in that capacity.

History

Source: Renumbered from Section 1120.08 to 1120.8 at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.10 Application

a) The Code and this Part apply to those procurements for which the vendors were first solicited on or after July 1, 1998.

b) Procurements for which vendors were first solicited on or before June 30, 1998, shall be conducted pursuant to legal requirements in effect at the time of the solicitation. The terms and conditions and the rights and obligations under contracts resulting from such procurements shall not be impaired.

c) A solicitation occurs on or before June 30, 1998, as follows:

When advertising was required in the Official State Newspaper, the first advertisement must run no later than June 30, 1998.
When advertising was not required:

A) but if the procurement was advertised, the first advertisement must have run no later than June 30, 1998;

B) if the procurement was by direct solicitation by mail, the solicitation must have been postmarked or placed in the control of a private carrier no later than June 30, 1998;

C) if the procurement was by direct solicitation by fax, the fax must show a transmission date no later than June 30, 1998;

D) if the procurement was solicited in-person or by telephone, the solicitation must have occurred no later than June 30, 1998, and the individual who made the solicitation must state in writing when the procurement was discussed, and must name the party with whom the discussion took place.

In all circumstances, the solicitations must be for the procurement of particular needs. A general discussion to determine if there is any interest is not considered a solicitation.

d) This Part shall not apply to:

agreements among governments, or between State governmental bodies, except as specifically provided in the Code;
grants;
hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual;
collective bargaining contracts;
purchase of real estate; or
contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the Comptroller's chief legal counsel shall give prior approval.

44 Ill. Adm. Code 1120.15 Definitions of Terms Used in This Part

As used throughout this Part, terms defined in the Illinois Procurement Code shall have the same meaning as in the Code and as further defined in this Section, and each term listed in this Section shall have the meaning set forth in this Section unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in that Section.

"Amendment" – A written unilateral or bilateral modification to a contract term, as permitted by the original contract. These modifications shall alter the performance and completion of the contract, including, but not limited to, such matters as extra work and increases or decreases in quantities of goods not included within the scope of the original contract.

"Award" – The selection of a vendor for a contract.

"Bid" − The response to an Invitation for Bids.

"Bidder" − Any person who submits a bid.

"Bidder or Offeror Authorized to do Business in Illinois" – A person that is a legal entity authorized to do business in Illinois by the Secretary of State- Department of Business Services.

"Brand Name or Equal Specification" − A specification that uses one or more manufacturer's names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet State requirements and that allows the submission of equivalent products.

"Brand Name Specification" − A specification limited to one or more items by manufacturers' names or catalogue numbers.

"Bulletin" – The Illinois Procurement Bulletin.

"Change Order" – A change order shall have the same meaning as an "amendment".

"Chief Procurement Officer" or "CPO" means the Chief Procurement Officer for the Illinois Office of the Comptroller.

"Code" − The Illinois Procurement Code [30 ILCS 500].

"Concession" – The right or a lease to engage in a certain activity for profit on the lessor's premises (e.g., a refreshment or parking concession).

"Consulting Services" − Services provided by a business or person as an independent contractor to advise and assist an agency in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of a State agency. The services may or may not rise to the level of professional and artistic as defined in the Code and this Part.

"Contract" − A contract may be in written or oral form. The term contract as used in the Code and this Part does not include: supplies or services the terms governing which are established by tariff of the Illinois Commerce Commission or the Federal Communications Commission, bonds issued by or on behalf of any State agency, or contracts, other than for "concessions", that the State agency signs but under which it has no financial obligation to the other parties.

"Contractor" or "Vendor" – The terms contractor and vendor are used interchangeably for purposes of the Code and this Part.

"CPO-GS" means the Chief Procurement Officer for General Services as established by Section 10-20(a)(4) of the Illinois Procurement Code.

"Day" − Calendar day. In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a State holiday, in which event the period shall run to the end of the next business day.

"DCMS" − The Department of Central Management Services.

"IOC" − The Illinois Office of the Comptroller.

"Items" – Anything that may be procured under the Code.

"Multi-Year Contract" – A contract with a performance term of more than 12 months.

"Offeror" – A person who responds to an IFB, RFP or other form of solicitation.

"Procurement Officer" − The Chief Procurement Officer (CPO) or his or her designee.

"Proposal" − The response to a Request for Proposals.

"Protest Review Office" – The office address of the person designated in the solicitation documents to which protests must be directed. The person designated in the solicitation documents will respond to or coordinate the response to the protest.

"Qualified Products List" − An approved list of supplies, described by model or catalogue numbers, that, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.

"Renewal" – An extension of an original contract that contains terms materially identical to the original contract.

"Request for Information" or "RFI" – The process by which a purchasing agency requests information from offerors for all State contracts and leases of real property or capital improvements.

"Responsible Bidder or Offeror" – A person who has the capability in all respects to perform fully the contract requirements and the integrity and reliability that will assure good faith performance. A responsible bidder or offeror shall not include a business or other entity that does not exist as a legal entity at the time the bid or proposal is submitted for State contract.

"Reverse Auction" – A source selection technique that allows for purchase of supplies or services through a competitive auction process. A reverse auction allows bidders to electronically submit prices for an IFB during a predefined time period and is designed to obtain the lowest cost for supplies and services.

"Service" – The furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance [30 ILCS 500/1-15.90], and the financing of that labor, time or effort.

"Solicitation" – An IFB, RFP or other request to one or more vendors to respond to a procurement need expressed by the State.

"Specification" − Any description of the physical, functional, or performance characteristics of, or of the nature of, a supply, service, or construction item. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply, service, or construction item for delivery. Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout this Part.

"Specification for a Common or General Use Item" − A specification that has been developed and approved for repeated use in procurements.

"Subcontract" – A contract between one person and another person who has or is seeking a contract subject to the Code, pursuant to which the subcontractor provides to the contractor or, if the contract price exceeds $50,000, another subcontractor, some or all of the goods, services, property, remuneration or other form of consideration that are the subject of the primary contract, and includes, among other things, subleases from a lessee of a State agency.

"Subcontractor" – A person or entity that enters into a contractual agreement with a total value of $50,000 or more with a person or entity who has a contract subject to the Code pursuant to which the person or entity provides some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary State contract, including subleases from a lessee of a State contract. For purposes of the Code, a person or entity is not a "subcontractor" if that person only provides goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to the Code. [30 ILCS 500/1-15.108]

"Supplies" or "Goods" – All personal property, including, but not limited to, equipment, materials, printing, and insurance, and the financing of those supplies. [30 ILCS 500/1-15.110]

"Unsolicited Offer" – Any offer other than one submitted in response to a solicitation.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.25 Property Rights

Receipt of an Invitation for Bids or other procurement document, or submission of any response thereto, or other offer confers no right to receive an award or contract, nor does it obligate the State in any manner.

44 Ill. Adm. Code 1120.525 Rules

a) To the extent practicable, the IOC may avail itself of master, scheduled or open-ended contracts established by the CPO-GS; items available from the Paper and Printing Warehouse; and the CPO-GS contracts for telecommunications equipment, software and services, paper and envelopes, and vehicles and vehicle services. The CPO or his/her designee may submit purchase requests to the CPO-GS or a designated agency in accordance with rules promulgated by the CPO-GS.

b) The IOC shall procure its capital needs in a manner substantially in accordance with the requirements of this Part and will promulgate rules specifically for capital construction that are no less restrictive than the requirements of the Code. Until specific Comptroller rules can be promulgated for this purpose, the IOC will conform its capital procurement activities to the requirements of the Code by following the administrative rules of the CPO for Capital Development Board (44 Ill. Adm. Code 8), the Capital Development Board (44 Ill. Adm. Code 950 and 980) and the CPO-GS (44 Ill. Adm. Code 1).

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.1002 Conduct and Oversight of Procurements

a) Chief Procurement Officer

The Comptroller shall appoint a Chief Procurement Officer (CPO) for purposes of the Code and this Part.
The CPO may conduct any or all procurements on behalf of the IOC.
The CPO shall:

A) have at least 5 or more years of experience in state or corporate budgeting activities, or shall be a certified professional public buyer or certified public purchasing officer; and

B) be a resident of the State of Illinois; and

C) serve in his or her capacity as CPO for a term not to exceed 5 years from the date of appointment; and

D) owe a fiduciary duty to the State; and

E) perform duties as required by law.

The CPO is responsible for signing all written award determination letters stating the reasoning for any contract award decision.
The CPO may designate one or more Procurement Officers to conduct procurements on behalf of the CPO in accordance with conditions specified in the terms of the CPO's appointment and this Part.

b) Procurement Compliance Monitor. The IOC Ethics Officer, appointed pursuant to the State Officials and Employees Ethics Act [15 ILCS 430], or his/her designee, shall serve as the Procurement Compliance Monitor. If a designee is appointed to serve as the monitor, that designee shall be classified as a Senior Public Service Administrator or above and, upon attaining certified status, shall have the employment protections afforded by that status. It shall be the duty of the monitor to oversee and review the procurement processes. The monitor shall have direct communication with the Comptroller. The monitor shall:

have the right to review all contracts, attend any procurement meetings, and access reports and files;
issue reports to the CPO regarding outstanding procurement problems;
ensure transparency and compliance with procurement laws;
report findings of waste to IOC departments. If the department does not correct circumstances causing the waste, the monitor shall report to the CPO and the Inspector General; and
perform other duties as required by law.

c) Procurement Policy Board. The Comptroller shall appoint an Office of the Comptroller Procurement Policy Board (IOC PPB). The IOC PPB shall consist of 3 members who are employees of the Comptroller. In making appointments to the IOC PPB, the Comptroller shall consider an individual's knowledge and experience in State government procurements and operations. The members shall receive no additional compensation for serving on the IOC PPB other than reimbursement for expenses. Except as provided in subsection (d), the IOC PPB shall:

meet a minimum of three times annually and be contacted in writing prior to the publication of any RFI exceeding $100,000;
be authorized to review, comment upon, and recommend rules and practices governing the procurement, management, control and disposal of supplies, services, professional or artistic services, construction and capital improvements procured by IOC;
be authorized to review any proposal, bid or contract, and may issue recommendations regarding procurement matters;
be notified by the CPO if a conflict of interest is identified, discovered or reasonably suspected to exist. In the event of a notification, the IOC PPB is to recommend action and give its recommendations to the CPO and Comptroller. The IOC PPB's recommendation shall be published in the next available issue of the Bulletin;
report to the Inspector General whenever the PPB has cause to believe there has been a violation of the Procurement Code; and
perform other duties as required by law.

d) Chief Internal Auditor. The Comptroller shall appoint a chief internal auditor. The auditor must have a Bachelor's degree, and must be either a certified internal auditor, a certified public accountant with at least 4 years of auditing experience, or an auditor with 5 years of experience. The chief internal auditor shall report directly to the Comptroller. Subject to the approval of the Comptroller, and consistent with the Fiscal Control and Internal Auditing Act [30 ILCS 10], the chief internal auditor shall:

direct the internal audit functions and activities;
prepare audit reports and assess program goals;
be responsible for the preparation of an annual audit plan for submission to and subject to the approval of the Comptroller; and
perform other duties as required by law.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.1510 Illinois Procurement Bulletin

Notice of any procurement action required by the Code to be publicized in the Illinois Procurement Bulletin will be forwarded to the CPO-GS for inclusion in the appropriate volume of the Bulletin in accordance with rules promulgated by the CPO-GS (44 Ill. Adm. Code 1).

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.1560 Supplemental Notice

Publication in the Bulletin may be supplemented by publication elsewhere at the discretion of the IOC.

44 Ill. Adm. Code 1120.1570 Error in Notice

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin.

44 Ill. Adm. Code 1120.1580 Direct Solicitation

In addition to giving notice in the Bulletin, the IOC may directly contact prospective vendors. Direct solicitation may be oral or in writing, but care should be taken to ensure that all vendors solicited in this manner receive the same information. When making direct solicitations, at least three vendors should be contacted. No direct solicitation shall be made prior to the date any required notice first appears in the Bulletin.

44 Ill. Adm. Code 1120.2005 General Provisions

a) Late Bids or Proposals, Late Withdrawals and Late Modifications

Definition. Any bid or proposal received after the time and date for receipt, and at other than the specified location, is late. A bid that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered, but the IOC shall not be responsible for ensuring such subsequent delivery. Any withdrawal or modification of a bid or proposal received after the time and date set for opening of bids or proposals is late. If received at other than the specified location, the submission is late.
Treatment. No late bid or proposal, late modification, or late withdrawal will be considered unless the CPO, and not a designee, determines it would have been timely but for the action or inaction of IOC personnel directly serving the procurement activity (e.g., providing the wrong address).
Records. Records shall be made and, in accordance with the State Records Act [5 ILCS 160], kept for each late bid or proposal, late modification, or late withdrawal.
Other Submissions. Any other submission that has a time or date deadline shall be treated in the same manner as a late bid.

b) Extension of Time

The Procurement Officer may, prior to the date or time for submitting or modifying, extend the date or time for the convenience of the IOC. Reasons for extension include, but are not limited to, allowing additional time for submissions to account for inclement weather or accidents and for other such reasons.
All notices under this subsection (b) will be provided electronically and posted on the Illinois Procurement Bulletin.

c) Electronic and Facsimile Submissions

The IFB or RFP may state that electronic and facsimile machine submissions will be considered if they are received at the designated office by the time and date set for receipt. Any required attachments will be submitted as stated in the IFB or RFP.
Electronic submissions authorized by specific language in the IFB or RFP will be opened in accordance with electronic security measures in effect at the IOC at the time of opening. Unless the electronic submission procedures provide for a secure receipt, vendor assumes risk of premature disclosure due to submission in unsealed form.
Fax submissions authorized by specific language in the IFB or RFP will be placed in a sealed container upon receipt and opened as other submissions. Vendor assumes risk of premature disclosure due to submission in unsealed form.

d) Intent to Submit

The IFB or RFP may require that vendors submit, by a certain time and date, a notice of their intent to submit a bid or proposal in response to the IFB or RFP. Bids and proposals submitted without complying with the notice of intent requirement may be rejected.

e) Only One Bid or Proposal Received

If only one bid or proposal is received, an award may be made to the single bidder or offeror if the CPO finds that the price submitted is fair and reasonable, and that either other prospective bidders had reasonable opportunity to respond or there is not adequate time for resolicitation. Otherwise:

new bids or offers may be solicited, including under sole source (Section 1120.2025) or emergency (Section 1120.2030) procedures;
the procurement may be canceled.

f) Alternate or Multiple Bids or Proposals

Alternate bids or proposals may be accepted if:

permitted by the solicitation and in accordance with instructions in the solicitation; or
only one vendor responded, in which case the alternate submission may be evaluated and treated in accordance with Section 1120.2025; or
the low bidder, who has met all requirements of the solicitation, has provided a lower cost alternative that meets all of the material requirements of the specifications.

g) Multiple Items

An IFB or RFP may call for pricing of multiple items of similar or related type with award based on individual line item, group total of certain items, or grand total of all items.

h) "All or None" Bids or Proposals

All or none bids or proposals may be accepted if the evaluation shows an all or none award to be in the State's best interest.

i) Conditioning Bids or Proposals Upon Other Awards

Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall:

be rejected unless the vendor removes the condition; or
be evaluated and award made to that vendor if the vendor is also independently evaluated as the winner of the other IFBs or RFPs, provided the agency need not delay procurement actions to accommodate the vendor's all or none condition.

j) Clarification of Bids and Proposals

k) Extension of Time on Indefinite Quantity Contracts.

The time of performance of an indefinite quantity contract may be extended upon agreement of the parties, provided the extension is for 90 days or less and the Procurement Officer determines in writing that it is not practical to award another contract at the time of the extension. A clarification is not an opportunity for discussion or for submission of Best & Finals as authorized elsewhere in this Part.

l) Increase in Quantity on Definite Quantity Contracts

The quantity that may be ordered from a definite quantity contract without additional notice and competition may be increased by up to 20% provided the Procurement Officer determines that separate bidding for the additional quantity is not likely to achieve lower pricing.
The quantity may be increased by any percentage provided the dollar value of the increase does not exceed the small purchase threshold applicable to the type of good or service.

m) Subsequent Purchase Request

If, within 30 days after making an award to a particular vendor pursuant to a competitive sealed bid on behalf of IOC, the CPO receives a purchase request for the same item and for the same or lesser quantity, the CPO may contract with that vendor on the same terms and conditions, including price, without additional notice and competition, if such a contract is acceptable to the vendor.

n) Novation or Change of Name

Assignment. No IOC contract is transferable, or otherwise assignable, without the written consent of the Procurement Officer; however, a vendor may assign monies receivable under a contract after due notice to the IOC. Assignment may require the execution of a contract with the assignee and, in those cases, the assignee must meet all requirements for contracting with the IOC.
Recognition of a Successor in Interest; Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the State;

C) the transferor waives all rights under the contract as against the IOC; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the IOC, furnish a satisfactory performance bond.

Change of Name. A vendor may submit to the Procurement Officer a written request to change the name in which it holds a contract with the State. The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.

o) Contracting for Installment Purchase Payments, Including Interest.

p) Use of Source Selection Method that is Not Required

If IOC uses a method of source selection that it is not required by law to use (e.g., use of competitive sealed bid for a small purchase), the IOC is not bound to strict compliance with the Code and the rules governing the method of source selection used.

q) Vendor Signature

A bid or proposal submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the Procurement Officer within the time specified by the CPO.

r) Stringing

Dividing or planning procurements to avoid the use of competitive procedures (stringing) is prohibited.

s) Confidential Data

Vendors must clearly identify any information that is exempt from the disclosure requirement of the Freedom of Information Act [5 ILCS 140] and must request special handling of that material. It is the sole obligation of vendors to redact confidential information from bids or offers submitted to IOC. Failure to submit redacted copies will result in the release of bids or offers in response to requests made pursuant to the Freedom of Information Act.

t) Documentation of Procurement Actions

The Procurement Officer shall maintain in the procurement or associated contract file all substantive documents and records of communications that pertain to the procurement and any resulting contract. This shall include, as applicable, but is not limited to:

A) Procurement Bulletin postings;

B) Solicitation documents (e.g., IFBs) and all amendments, clarifications and Best & Final requests;

C) Vendor's responses, including clarifications and responses to Best & Final requests;

D) Evaluation materials (e.g., scoring guidelines and forms, completed score sheets for individual evaluators (including notes), evaluation committee's combined score sheets, evaluation committee's recommendations, and management's decision);

E) Protests and resolutions;

F) Contracts and any orders, changes, amendments, renewals or extensions.

All information from subsection (t)(1), less any information exempt from disclosure under the Freedom of Information Act, shall be prepared and made available for inspection and copying, with information from subsections (t)(1)(A) through (D) made available on the date any award is posted to the Bulletin.

u) Communications Related to Procurement

Any IOC employee who receives a written or oral communication that imparts or requests material information or makes a material argument regarding potential action concerning a procurement matter, including but not limited to an application, contract or project, shall report the communication to the IOC PPB.
A communication must be reported if it is material, if it regards a potential action, if it relates to a procurement matter and if it is not otherwise excluded from reporting.

A) Materiality

i) "Material information" is information that a reasonable person would deem important in determining his or her course of action. It is information pertaining to significant issues, including, but not limited to, price, quantity and terms of payment or performance.

ii) A "material argument" is a communication that a reasonable person would believe was made for the purpose of influencing a decision relating to a procurement matter. It does not include general information about products, services or industry best practices, or a response to communications initiated by an employee of the IOC for purposes of providing information for the evaluation of new products, trends, services or technologies.

iii) In determining whether a communication is material, the State employee may consider:

• Whether the information conveyed is new or already known to the IOC (or repeated or restated privately) and other participants in the communication; and

• The likelihood that the information would influence a pending procurement matter.

B) A "potential action" is one that a reasonable person would believe could affect the initiation, development or outcome of a procurement matter.

This Section does not apply to the following communications:

A) Communication regarding the procurement of items that have a contract value less than the small purchase amount stated in Section 1120.2020;

B) Communications made in a public forum;

C) Communications regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of the matter;

D) Communications regarding the administration and implementation of an existing contract (see 30 ILCS 500/50-39(a));

E) Communication between the IOC employee and:

i) the Comptroller;

ii) other State employees of the IOC;

iii) employees of the Executive Ethics Commission;

iv) an employee of another State agency who, through the communication, is either:

• exercising oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities;

F) Unsolicited communications providing general information about products, services or industry best practices, prior to those products or services becoming involved in a procurement matter;

G) Communications received in response to procurement solicitations pursuant to the Code, including, but not limited to, vendor responses to an RFI, RFP, Request for Qualifications or IFB, or a small purchase, sole source or emergency solicitation, and questions and answers posted to the Bulletin to supplement the procurement action. This exemption is not applicable unless the communications are made in accordance with the instructions contained in the procurement solicitation, procedures or guidelines;

H) Communications that are privileged, protected or confidential under law;

I) Communications that are part of the formal procurement process as set out by statute, rule or procedure, such as the posting of procurement opportunities, the process for approving a Procurement Business Case (as defined in 2 Ill. Adm. Code 1620.825(i)) or its equivalent, fiscal approval, submission of bids, the finalizing of contract terms and conditions with an awardee or apparent awardee, and similar formal procurement processes.

Notwithstanding any exemption provided in subsection (u)(3), an IOC employee must report any communication that imparts or requests material information or makes a material argument regarding a potential action concerning a procurement matter if the employee reasonably believes the communication was made for any improper purpose, including, but not limited to, providing an improper benefit, monetary or non-monetary, to any person or entity.
As soon as is practicable, but in no event more than 30 days after receipt of the communication or the first of a series of communications described in subsection (u)(2), the State employee shall report the communication in accordance with Section 50-39 of the Code.
For purposes of this Section, "State employee" means:

A) any person employed full-time, part-time or pursuant to a personal services contract with the State and whose employment duties are subject to the direction and control of an employer with regard to the material details of how the work is to be performed; or

B) any appointed or elected commissioner, trustee, director or member of a board of a State agency; or

C) any other person appointed to a position in or with a State agency, regardless of whether the position is compensated.

For purposes of this Section, "public forum" includes any meeting that satisfies the notice requirements contained in Section 2.02 of the Open Meetings Act [5 ILCS 120/2.02], but also other public events that are advertised and generally open to the public. A meeting may be a public forum even if a reasonable fee is required. Examples include educational seminars and conferences.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.2010 Competitive Sealed Bidding

a) Application

Competitive sealed bidding is the required method of source selection, except as allowed by the Code and this Part. The provisions of this Section apply to every procurement required to be conducted by competitive sealed bidding.

b) Invitation for Bids (IFB)

Use. The IFB is used to initiate a competitive sealed bid procurement.
Content. The IFB shall include, at a minimum, the following:

B) the purchase description, evaluation factors, delivery or performance schedule, and inspection and acceptance requirements not included in the purchase description; and

C) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

Incorporation by Reference. The IFB may incorporate documents by reference provided that the IFB specifies where those documents can be obtained.

c) Bidding Time

Bidding time is the period of time between the date of notice or distribution of the IFB and the time and date set for receipt of bids. In each case, bidding time will be set to provide bidders a reasonable time to prepare their bids. A minimum of 14 days shall be provided unless a shorter time is authorized by the Code or this Part.

d) Bidder Submissions

Bid Form. The IFB may provide a form that shall include space in which the bid price shall be inserted and that the bidder shall sign and submit along with all other necessary submissions.
Bid Samples and Descriptive Literature.

A) Bid samples or descriptive literature may be required when necessary to evaluate required characteristics of the items bid.

B) Unsolicited bid samples or descriptive literature is submitted at the bidder's risk, may not be examined or tested, will not be deemed to vary any of the provisions of the IFB, and may not be utilized by the vendor to contest a decision or understanding with the State.

e) Public Notice

Publication. Every procurement for supplies and services in excess of the small purchase limit that must be procured using an IFB shall be publicized in the next available issue of the Bulletin.
Public Availability. A copy of the IFB shall be made available for public inspection.

f) Pre-Bid Conference

A pre-bid conference may be conducted to enhance understanding of the procurement requirements.
The pre-bid conference shall be announced as a part of the IFB notice.
The conference may be designated as "attendance mandatory" or "attendance optional".
The conference should be held long enough after the IFB has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids.
Nothing stated at the pre-bid conference shall change the IFB unless a change is made by written amendment to the IFB.
Amendments shall be supplied to all those prospective bidders known to have received an IFB.
If the conference is mandatory, the amendment shall be supplied to attendees only.

g) Amendments to Invitations for Bids

Form. Amendments to IFBs shall be clearly identified, shall reference the portion of the IFB they amend and shall be publicized in the next available issue of the Bulletin.
Timeliness. Amendments shall be made available within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such consideration, the amendment shall extend the response time. If necessary, the response time may be extended by publication in the next available issue of the Bulletin.

h) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the IFB prior to the time and date set for bid opening. A fax modification or withdrawal, or withdrawal received by telephone prior to the time and date set for bid opening, will be effective if followed in writing.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

i) Receipt, Opening and Recording of Bids

Receipt. Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening. If a bid is opened in error, the file shall so state.
Opening and Recording

A) Bids and modifications shall be opened publicly at the time, date, and place designated in the IFB. Opening shall be witnessed by a State employee or any other person present, but the person opening bids shall not serve as witness. The name of each bidder, the bid price, and such other information as is deemed appropriate by the Procurement Officer shall be recorded and the name of each bidder read aloud or otherwise made available. The names of witnesses shall also be recorded at the opening.

B) The winning bid shall be available for public inspection after award, along with the record of each unsuccessful bid.

Confidential Data. The Procurement Officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. If the parties do not agree as to the disclosure of data or other information, the bid shall be rejected as nonresponsive.

j) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the IFB, except as permitted in the Code and this Part. The IFB shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder. No bid shall be evaluated for any requirements or criteria that are not disclosed in the IFB.
Responsibility. Responsibility of prospective vendors is covered by Section 1120.2046 (Responsibility) of this Part.
Responsiveness. A bid must conform in all material respects to the IFB.

i) inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

ii) examination of such elements as appearance, finish, taste or feel;

iii) other examinations to determine whether the product or service conforms with any other purchase description requirements.

B) The acceptability evaluation is not conducted for the purpose of determining whether one bidder's product or service capability is superior to another, but only to determine that a bidder's offering is acceptable as set forth in the IFB. Any bidder's offering that does not meet the acceptability requirements shall be rejected.

Determination of Lowest Bidder. Following determination of product or service acceptability as set forth in this subsection (j), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the IFB. Only objectively measurable criteria that are set forth in the IFB shall be applied in determining the lowest bidder. Examples of objectively measurable criteria include, but are not limited to, transportation cost and ownership or life-cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible evaluation factors shall be reasonable estimates based upon information the IOC has available concerning future use and shall treat all bids equitably. Pricing for optional supplies or services, or for renewal terms, may not be considered, particularly when the pricing for the items or terms is unbalanced when compared to other pricing in the bid.
Price Negotiation. This Section permits negotiations with the low bidder to obtain a lower price for the item bid.

k) Documentation of Award

Following award, a record showing the successful bidder shall be made a part of the procurement file.

l) Award to Other Than Low Bidder

The CPO may award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest. The written explanation must be published in the appropriate volume of the Procurement Bulletin.
The name of the bidder selected, pricing, and the reasons for selecting this bidder instead of the low bidder must be published in the appropriate volume of the Bulletin.
The explanation must include:

A) a description of the needs of IOC;

B) a determination that the anticipated cost will be fair and reasonable;

C) a listing of all reasonable and responsive bidders; and

D) the name of the bidder selected, the pricing and the reasons for selecting that bidder.

The explanation shall be filed with the Legislative Audit Commission and the IOC PPB.

m) Publicizing Award

The successful bidder shall be notified of award and the notification may be in the form of a letter, purchase order or other clear communication.
In procurements over the small purchase limit set in Section 1120.2020, notice of award shall be published in the next available issue of the Bulletin.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2012 Multi-Step Sealed Bidding

a) Definition

Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the IOC, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered.

b) Conditions for Use

The multi-step sealed bidding method may be used when it is not practical to prepare initially a definitive purchase description that will be suitable to permit an award based on price. Multi-step sealed bidding may be used when it is considered desirable:

to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and
to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, when appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description.

c) Pre-Bid Conferences in Multi-Step Sealed Bidding

Prior to the submission or evaluation of unpriced technical offers, a pre-bid conference as contemplated by Section 1120.2010(f) (Pre-Bid Conference) may be conducted by the CPO.

d) Procedure for Phase One of Multi-Step Sealed Bidding

Form. Multi-step sealed bidding shall be initiated by the issuance of an IFB in the form required by Section 1120.2010 (Competitive Sealed Bidding), except as provided in this Section. In addition to the requirements set forth in Section 1120.2010, the multi-step IFB shall state:

A) that unpriced technical offers are requested;

B) whether priced bids are to be submitted at the same time as unpriced technical offers; if they are, such priced bids shall be submitted in a separate sealed envelope;

C) that it is a multi-step sealed bid procurement, and priced bids will be considered only in the second phase and only from those bidders whose unpriced technical offers are found acceptable in the first phase;

D) the criteria to be used in the evaluation of the unpriced technical offers;

E) that the IOC, to the degree the CPO finds necessary, may conduct oral or written discussions of the unpriced technical offers;

F) that the item being procured shall be furnished generally in accordance with the bidder's technical offer as found to be finally acceptable and shall meet the requirements of the IFB.

Amendments to the IFB. After receipt of unpriced technical offers, amendments to the IFB shall be distributed only to bidders who submitted unpriced technical offers, and they shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the CPO, a contemplated amendment will significantly change the nature of the procurement, the IFB may be canceled in accordance with Section 1120.2040 (Cancellation of Solicitation; Rejection of Bids or Proposals) and a new IFB issued.
Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers submitted by bidders shall be opened in the presence of at least one witness. These offers shall not be disclosed to unauthorized persons. Bidders may request nondisclosure of trade secrets and other proprietary data identified in writing.
Evaluation of Unpriced Technical Offers.

A) The unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the IFB. The unpriced technical offers shall be categorized as:

i) acceptable;

ii) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

iii) unacceptable, in which case the Procurement Officer shall record in writing the basis for finding an offer unacceptable and make it part of the procurement file.

B) The CPO may initiate phase two of the procedure if, in the CPO's opinion, there are sufficient acceptable unpriced technical offers to assure effective price competition in the second phase without technical discussions. If the CPO finds that such is not the case, the CPO may commence discussions of the unpriced technical proposals.

Discussion of Unpriced Technical Offers. The Procurement Officer may conduct discussions with any vendor who submits an acceptable or potentially acceptable technical offer. During the course of the discussions, the Procurement Officer shall not disclose any information derived from one unpriced technical offer to any other bidder. Any such bidder may submit supplemental information amending its technical offer at any time until the closing date established by the Procurement Officer. The submission may be made at the request of the Procurement Officer or upon the bidder's own initiative.
Unacceptable Unpriced Technical Offer. When the CPO determines a bidder's unpriced technical offer to be unacceptable, the offeror shall not be afforded an additional opportunity to supplement its technical offer.

e) Procedure for Phase Two

Initiation. Upon the completion of phase one, the CPO shall either:

A) open priced bids submitted in phase one (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; or

B) if priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

Conduct. Phase two shall be conducted as any other competitive sealed bid procurement except:

A) no public notice need be given of this invitation to submit priced bids because notice was previously given;

B) after award, the unpriced technical offer of the successful bidder shall be disclosed as follows: The Procurement Officer shall examine written requests of confidentiality for trade secrets and proprietary data in the technical offer of the bidder to determine the validity of any such requests. If the parties do not agree as to the disclosure of data, the CPO shall reject the offer. The technical offer shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data; and

C) unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2015 Competitive Sealed Proposals

a) Conditions for Use

When provided for under the Code or under this Part, or when the IOC determines in writing that the use of competitive sealed bidding is either not practicable or not advantageous to the IOC, a contract may be entered into by competitive sealed proposals.

b) Request for Proposals (RFP)

Proposals shall be solicited through an RFP.

c) Public Notice

Public notice of the RFP shall be published in the Bulletin at least 14 days prior to the date set in the RFP for the opening of proposals.

d) Receipt of Proposals

Proposals shall be opened publically in the presence of one or more witnesses at the time and place designated in the RFP, but proposals shall be opened in a manner to avoid disclosure of contents to competing offerors during the process of negotiation. A record of proposals shall be prepared and shall be open for public inspection after the contract is awarded.

e) Evaluation Factors

The RFP shall state the relative importance of price and other evaluation factors. Proposals shall be submitted in 2 parts: the first covering items except price and the second concerning price. The first part of all proposals shall be evaluated and ranked independently of the second part of all proposals.

f) Discussion with Responsible Offerors and Revisions of Proposals

As provided in the RFP and this Part, discussion may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarifying and assuring full understanding of and responsiveness to the solicitation requirements. Those offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted after submission and before award for the purpose of obtaining Best & Final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors. If information is disclosed to any offeror, it shall be provided to all competing offerors.

g) Award

Awards shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the IOC, taking into consideration the price and the evaluation factors set forth in the RFP. The contract file shall contain the basis on which the award is made.

History

Source: Amended at 37 Ill. Reg. 3075 effective March 1, 2013

44 Ill. Adm. Code 1120.2020 Small Purchases

a) Application

Amount. Any individual procurement of supplies or services not exceeding $100,000 and any procurement of construction not exceeding $100,000, or any individual procurement of professional or artistic services not exceeding $100,000 may be made without competitive source selection. Procurements shall not be artificially divided so as to constitute a small purchase under this Section. [30 ILCS 500/20-20(a)]
Adjustment. Each July 1, the small purchase maximum established in subsection (a)(1) shall be adjusted for inflation as determined by the Consumer Price Index for All Urban Consumers as determined by the United States Department of Labor and rounded to the nearest $100. [30 ILCS 500/20-20(b)]

b) In determining whether a contract is under the limit, the stated value of the supplies or services, plus any optional supplies and services, determined in good faith, shall be utilized. When the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a 12 month period.

c) If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not to exceed limit applicable to the type of procurement (see subsection (a)).

d) If, after signing the contract, the actual cost of completing the contract is determined to exceed the small purchase amount, and the CPO determines that a supplemental procurement is not economically feasible or practicable because of the immediacy of the agency's needs or other circumstances, the Procurement Officer must follow the procedures for sole source or emergency procurement, whichever is applicable, to complete the contract.

e) Notice of award shall be published in the Bulletin no later than 10 business days after the contract is awarded.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.2025 Sole Economically Feasible Source Procurement

a) Application

The provisions of this Section apply to procurement from a sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement is within the limit set in Section 1120.2020 or unless emergency conditions exist as defined in Section 1120.2030.

b) Conditions for Use of Sole Source Procurement

Sole source procurement is permissible when a requirement is available from only a single supplier or when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one potential bidder or offeror authorized to provide that item. The following are examples of circumstances that could necessitate sole source procurement:

the compatibility of equipment, accessories, replacement parts, or service is a paramount consideration;
a sole supplier's items are needed for trial use or testing;
a sole supplier's item is to be procured for commercial resale;
public utility regulated services are to be procured;
the item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;
the procurement is of media and advertising;
the procurement is of art or entertainment services; and
existing contracts are being changed (see subsection (c)).

c) Changes

Changes to an existing contract that are germane and reasonable in scope and cost in relation to the original contract or program, that are necessary or desirable to complete the contract or program, and that can be best accomplished by the contract holder may be procured under this Section when the CPO determines that the cost of delay or disruption to the contract or program, and the cost of new solicitation, clearly indicate that the existing vendor is the sole economically feasible source.
A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 1120.2020 or that is an emergency as defined in Section 1120.2030, may be made in accordance with procedures governing those Sections and need not comply with these sole source procedures. A change in the length of the contract that does not exceed 30 days and other minor, immaterial changes to the scope or administrative provisions of a contract shall not be considered changes subject to these sole source procedures.

d) CPO to Determine

The determination as to whether a procurement shall be made as a sole source shall be made by the CPO. The determination and the basis for the determination shall be in writing. The CPO may specify the application of the determination and the duration of its effectiveness.
Any purchase request submitted to the CPO suggesting that a procurement be restricted to one potential vendor shall be accompanied by an explanation as to why no other vendor will be suitable or acceptable to meet the need.

e) Publication of Sole Source Notice

The CPO shall publish in the Bulletin notice of intent to contract with that vendor at least 14 days prior to execution of the contract.

If no challenge to this determination is made by a vendor within the 14 day period, the CPO may execute a contract with that vendor.
If a challenge is received, the Procurement Officer shall consider the information and shall commence a competitive procurement if the CPO determines that more than one economically feasible source may be available and the sole source designation is, therefore, not appropriate, unless an emergency situation exists.
Any person challenging a sole source determination may request a public hearing.

f) Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, to reach contract terms, including price, and shall maintain a record of each sole source procurement showing:

the vendor's name;
the amount and type of the contract; and
a listing of the supplies, services or construction procured under each contract.

g) Prohibition Against Amending a Contract for Professional or Artistic Services The provisions of this Part shall not apply to an amendment to a contract for professional or artistic services if:

there is an increase in the amount paid under the contract of more than 5% of the initial award; or
the term of the contract would extend by a period not to exceed the time reasonably needed for a competitive procurement or 2 months, whichever is less.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.2030 Emergency Procurements

a) Applications

The provisions of this Section apply to every procurement over the small purchase limit set in Section 1120.2020, that is not a sole source procurement under Section 1120.2025, made under emergency conditions.

b) Definition of Emergency Conditions

Procurements may be made under this Section in the following circumstances:

Traditional circumstances include but are not limited to:

A) public health or safety, including the health or safety of any particular person, is threatened;

B) repairs to IOC property are needed to protect against further loss or damage to IOC property, or to prevent loss or damage to IOC property;

C) action is needed to prevent or minimize serious disruption in State services;

D) action is needed to ensure the integrity of State records;

E) a supplier of goods or services announces bankruptcy, going out of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is in the State's best interest;

F) items are available on the spot market or at discounted prices available for a limited time such that good business judgment mandates a purchase immediately to take advantage of the availability and price;

G) legal services to assist an agency in the formulation of policy, in drafting or evaluating documents, or in determining the extent of statutory authority that are needed sooner than the competitive process would allow;

H) the need for items to protect or further State interests is immediate and use of other competitive source selection procedures under the Code and this Part cannot be accomplished without significant risk of causing serious disadvantage to the State;

I) extending a contract is needed to conduct a competitive method of source selection;

J) immediate action is necessary to avoid lapsing or loss of federal or donated funds; or

K) immediate action is necessary to protect the collection of State revenue.

After Unsuccessful Competitive Sealed Bidding or Proposals or Request for Proposals. When bids or proposals received pursuant to a competitive sealed bid or competitive sealed proposal method are unreasonable or noncompetitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals, and if emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding, an emergency procurement may be made.
Extension to Allow Competition. Extending an existing contract for such period of time as is needed to conduct a competitive method of source selection where terminating or allowing the contract to terminate would not be advantageous to the State.
Quick Purchase

A) A supplier announces bankruptcy, cessation of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is more advantageous to the State than instituting a competitive procurement under the provisions of this Code for the supplies or services;

B) Items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a purchase immediately to take advantage of the availability and price.

c) Scope of Emergency Conditions

Emergency procurement shall be limited to the supplies or services, quantity and term reasonably necessary to meet the emergency.
Emergency procurements shall be limited to the time reasonably needed for a competitive procurement, but in no event shall that time exceed 90 days unless the CPO determines additional time is needed.
In the event an emergency procurement exceeds 90 days, the contract scope and duration may be extended. The extension shall be limited in items, quantity and days.

d) Authority to Make Emergency Procurements

Authority to make emergency procurements is established by subsection (c), provided that, whenever practical, existing IOC contracts shall be utilized and, whenever practical, approval by the CPO shall be obtained prior to the procurement. The CPO shall be responsible for making the filings required in Section 20-30 of the Code.

e) Source Selection Methods

Any method of source selection, whether or not identified in the Code or this Part, may be used to conduct the procurement in emergency situations. Such competition as is practicable shall be obtained.

f) Determination and Record of Emergency Procurement

Determination. The CPO shall make a written determination stating the basis for an emergency procurement and for the selection of the particular contractor. The determinations shall be kept in the contract file.
Record. An affidavit of each emergency procurement shall be filed by the CPO with the IOC PPB and the Auditor General within 10 days after the procurement and shall include the following information:

A) the vendor's name;

B) the amount and type of the contract (if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known);

C) a description of what the vendor will do or provide;

D) the reasons for using the emergency method of source selection.

Notice of the emergency procurement shall be published in the Bulletin in accordance with Subpart D of this Part.

g) Extensions of Emergencies

In the event an emergency procurement exceeds 90 days, the emergency procurement may be extended. Prior to the execution of the extension:

the CPO must determine additional time is necessary;
the contract scope and duration must be limited to the emergency;
a public hearing must be held;
the CPO must provide written justification for the emergency contract; and
notice of the intent to extend shall be provided to the IOC PPB and published in the Bulletin in accordance with Subpart D.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2035 Competitive Selection Procedures for Professional and Artistic Services

a) Application

The provisions of this Section apply to every procurement of professional and artistic services except those professional and other services necessary to prepare for anticipated litigation, enforcement actions, or investigations, which are exempt from the requirements of the Code and this Part and except as provided in Section 1120.2020 and in subsection (c) of this Section.
"Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 500/1-15.60].

b) Public Notice of Competitive Selection Procedures

Notice of the need for professional and artistic services shall be made by the CPO in the form of an RFP.
Notice shall be given as provided in Section 1120.2010(e).
Notice shall also be distributed to prequalified persons interested in performing the services required by the proposed contract.

c) Request for Proposals

Contents. The RFP shall be in the form specified by the CPO and shall contain at least the following information:

A) the type of services required;

B) a description of the work involved;

C) an estimate of when and for how long the services will be required;

D) the type of contract to be used;

E) a date by which proposals for the performance of the services shall be submitted;

F) a statement of the minimum information that the proposal shall contain, which may include, but is not limited to:

i) the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

ii) the abilities, qualifications and experience of all persons who would be assigned to provide the required services;

iii) a listing of other contracts under which services similar in scope, size or discipline to the required services were performed or undertaken within a previous period of time, as specified in the RFP;

iv) a plan giving as much detail as is practical explaining how the services will be performed;

G) price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package); and

H) the factors to be used in the evaluation and selection process and their relative importance.

Evaluation. Proposals shall be evaluated only on the basis of evaluation factors stated in the RFP. Price will not be evaluated until ranking of all proposals and identification of the most qualified vendor. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum factors are:

A) the plan for performing the required services;

B) ability to perform the services as reflected by technical training and education, general experience, specific experience in providing the required services, and the qualifications and abilities of personnel proposed to be assigned to perform the services;

C) the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

D) a record of past performance of similar work.

d) Pre-Proposal Conference

A pre-proposal conference may be conducted in accordance with Section 1120.2010(f). The conference may be held at any time prior to the date established for submission of proposals.

e) Receipt and Handling of Proposals

Proposals and modifications shall be sent to the CPO as directed in the solicitation and shall be time-stamped upon receipt and held in a secure place until the due date and time at which they will be opened by the Procurement Officer.
Proposals shall not be opened publicly nor disclosed to unauthorized persons, but shall be opened in the presence of at least one witness.
A register of proposals shall be established that shall include, for all proposals, the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the services offered.
The register of proposals shall be open to the public only after award of the contract.

f) Discussions

Discussions Permissible

A) The Procurement Officer may conduct discussions with any offeror to:

i) determine in greater detail the offeror's qualifications; and

ii) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach.

B) The CPO may allow changes to the proposal based on those discussions.

No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors, and the agency conducting the procurement shall not disclose any information contained in any proposals until after award of the proposed contract has been made. The proposal of the offeror awarded the contract shall be open to public inspection except as otherwise provided in the contract.

g) Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation, and discussion, the CPO shall rank the acceptable offerors in the order of their respective qualifications.

h) Evaluation of Pricing Data

Pricing submitted for all proposals timely submitted shall be opened and ranked.

If the low price is submitted by the most qualified vendor, the CPO may award to that vendor.
If the price of the most qualified vendor is not low and if it is under $25,000, the CPO may award to that vendor.
If the price is over $25,000, the CPO must state why the qualifications were deemed more important than price and that determination shall be published in the next available issue of the Bulletin.

i) Negotiation and Award of Contract

General. The Procurement Officer shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The Procurement Officer may, in the interest of efficiency, negotiate with other vendors while negotiating with the best qualified vendor.
Elements of Negotiation. Contract negotiations shall be directed toward:

A) making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

B) determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services, and the scope, complexity and nature of the services.

Request for Nondisclosure of Data

A) If the offeror selected for award has requested in writing the nondisclosure of trade secrets and other proprietary data so identified, the head of the agency conducting the procurement or a designee of such officer shall examine the request in the proposal to determine its validity prior to entering negotiations.

B) If the parties do not agree as to the disclosure of data in the contract, the CPO shall reject the proposal.

Successful Negotiation of Contract with Best Qualified Offeror

A) If compensation, contract requirements, and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is canceled.

B) Compensation must be determined in writing to be fair and reasonable. Fair and reasonable compensation shall be determined by the CPO based on the circumstances of the particular procurement, including but not limited to the nature of the services needed, qualifications of the offerors, consideration of the range of prices received in the course of the procurement, and the agency's identified budget.

Failure to Negotiate Contract with Best Qualified Offeror

A) If compensation, contract requirements, and contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons therefore shall be placed in the file. The Procurement Officer shall advise the offeror of the termination of negotiations.

B) Upon failure to negotiate a contract with the best qualified offeror, the Procurement Officer may enter into negotiations with the next most qualified offeror, and so on in that manner until an award is made or the procurement canceled.

j) Multiple Awards

The Procurement Officer may enter into negotiations with the next most qualified vendor or vendors when the purchasing agency has a need that requires multiple vendors under contract.

k) Notice of Award

Written notice of award shall be public information and made a part of the contract file. The CPO shall publish the successful vendor, a contract reference number or other identifier, and the value of the contract. Publication shall be in the next available issue of the Bulletin.

l) The CPO may publish notices of small, sole source and emergency procurements of professional and artistic services under the jurisdiction of the CPO.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2036 Other Methods of Source Selection

a) Split Award

An award of a definite quantity requirement may be split between bidders or offerors. Each portion shall be for a definite quantity and the sum of the portions shall be the total definite quantity required. A split award may be used only when award to more than one bidder or offeror for different amounts of the same item are necessary to obtain the total quantity or the required delivery.
The CPO shall make a written determination setting forth the reasons for the split award, which determination shall be made a part of the procurement file.

b) Multiple Award

A multiple award is an award of an indefinite quantity contract to more than one bidder or offeror when the IOC is obligated to order all of its actual requirements from those vendors.
A multiple award may be made when award to two or more bidders or offerors for similar products is necessary for adequate delivery, service, or product compatibility. Any multiple award shall be made in accordance with the provisions of Section 1120.2010,Section 1120.2015, Section 1120.2020, and Section 1120.2030, as applicable. Awards shall not be made for the purpose of simply dividing the business or making available product or supplier selection to allow for user preference unrelated to utility or economy. Any such awards shall be limited to the least number of suppliers necessary to meet the valid requirements of State agencies.
The IOC shall reserve the right to take bids separately if a particular quantity requirement arises that exceeds its normal requirement or an amount specified in the contract.
If a multiple award is anticipated, the solicitation shall state this fact, as well as the criteria for award.
In a multiple award situation, one vendor may be designated as the primary recipient of orders. The other awardees may receive orders in the event the primary vendor is unable to deliver or for other reasons as determined by the CPO.

c) Auction

d) Non-governmental Joint Purchase

The CPO may enter into an agreement with a person not eligible for the Governmental Joint Purchasing Act [30 ILCS 525] for the joint procurement of anything covered by the Code.
Any method of source selection may be used and may be modified or adopted to meet the needs of the non-State entity.

e) Federal Requirements

Requirements of the Code and this Part may be modified or adapted to meet federal requirements.

f) Donations

With approval of the CPO, when the IOC receives a donation that provides the majority of the funding, IOC may follow any procurement or contracting requirements established as a condition of the donation, but shall follow the Code and this Part whenever practicable.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2037 Tie Bids and Proposals

a) Tie bids or proposals are those from responsive and responsible vendors that are identical in price or evaluation.

b) Tie bids or proposals will be treated as follows:

If the tied vendors include an Illinois resident vendor, the Illinois resident vendor shall be given the award. In all other situations, including if two or more Illinois resident bidders are tied, the decision shall be made in accordance with subsections (b)(2) through (5). "Illinois resident vendor" has the meaning given in Section 1120.4510.
If there is a significant difference in responsibility (including ability to provide the service or deliver in the quantity and at the time required), the award will be made to the vendor who is deemed to be the most responsible. A vendor who has had experience in contracting with the State or IOC shall be given additional consideration in determining responsibility if the CPO determines that dealing with a vendor that has knowledge of State requirements, contracts, job sites, payment practices and such other factors and with which there has been favorable past experience increases the likelihood of successful performance.
If there is no significant difference in responsibility, but there is a difference in the quality of the goods or services offered, the vendor offering the best quality will be accepted.
If there is no significant difference in responsibility and no difference in quality of the goods or services offered, the vendor offering the earliest delivery time will be accepted in any case in which the solicitation specified that the needs of the IOC require as early delivery as possible.
If the bids or proposals are equal in every respect, the award shall be made by lot unless the CPO determines that splitting the award among two or more of the tied bidders is in the best interest of the State. Awards may be split if all affected bidders agree, if splitting is feasible given the type of good or service requested, if overall pricing would not increase, if delivery would be better ensured, or if necessary or desirable to promote future competition.

c) Record. Records shall be made of all procurements on which tie bids or proposals are received, showing at least the following information:

the identification number of the solicitation;
the supply, service or construction item; and
a listing of all the bidders and the prices submitted.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2038 Mistakes

a) General. Corrections to bids, proposals or other procurement processes are allowed, but only to the extent not contrary to the best interest of the State or the fair treatment of other bidders.

b) Mistakes Discovered Before Opening. A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting as provided in this Section.

c) Confirmation of Mistake. When the CPO knows or has reason to conclude that a mistake has been made, the CPO should request the vendor to confirm the information. Situations in which confirmation should be requested include obvious or apparent errors on the face of the document or a price unreasonably lower than the others submitted. If the vendor alleges a mistake, the bid or proposal may be corrected or withdrawn if the conditions set forth in this Section, as applicable, are met.

d) Mistakes in Bids Discovered After Opening but Before Award. This subsection (d) sets forth procedures to be applied in situations in which mistakes in bids are discovered after the time and date set for bid opening but before award.

Minor Informalities. A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation of a bid from the exact requirement of the IFB, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery or contractual conditions is negligible). The CPO shall waive the informalities or allow the bidder to correct them, depending on which is in the best interest of the State. Minor informalities include insignificant mistakes when the effect on price, quantity, quality, delivery or contractual conditions is negligible. Examples of minor informalities as to form include the failure of a bidder to:

A) return the number of signed bids required by the IFB;

B) sign the bid, but only if the unsigned bid is accompanied by other material indicating the bidder's intent to be bound, including but not limited to signature on an auxiliary form, submission of a bid guarantee or submission of a signed transmittal letter; or

C) acknowledge receipt of an amendment to the IFB, but only if:

i) it is clear from the bid that the bidder received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on price, quantity, quality or delivery.

Mistakes in Which Intended Correct Bid Is Evident. If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.
Mistakes in Which Intended Correct Bid Is Not Evident. A bidder may be permitted to withdraw a low bid if:

A) a mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or

B) the bidder submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

e) Mistakes in Proposals Discovered After Receipt, but Before Award. This subsection (e) sets forth procedures to be applied in four situations in which mistakes in proposals are discovered after receipt of proposals but before award.

During Discussions; Prior to Best & Final Offers. Once discussions are commenced with any offeror or after Best & Final offers are requested, any offeror may freely correct any mistake prior to the date set for conclusion of discussions or for receipt of Best & Final offers.
Minor Informalities. Minor informalities, unless otherwise corrected by an offeror as provided in this Section, shall be treated as they are under competitive sealed bidding. (See subsection (d).)
Correction of Mistakes. If discussions are not held or if the Best & Final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only if:

A) the mistake and the intended correct offer are clearly evident on the face of the proposal, in which event the proposal may not be withdrawn; or

B) the mistake is not clearly evident on the face of the proposal, but the offeror submits adequate proof that clearly and convincingly demonstrates both the existence of a mistake and the intended correct offer, and such correction would not be contrary to the fair and equal treatment of other offerors.

Withdrawal of Proposals. If discussions are not held, or if the Best & Final offers upon which award will be made have been received, the offeror may be permitted to withdraw the proposal if:

A) the mistake is clearly evident on the face of the proposal and the intended correct offer is not;

B) the offeror submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made but does not demonstrate the intended correct offer; or

C) the offeror submits adequate proof that clearly and convincingly demonstrates the intended correct offer, but to allow corrections would be contrary to the fair and equal treatment of other offerors.

f) Mistakes Discovered After Award. Mistakes shall not be corrected after award of the contract except when the CPO finds it would be unconscionable not to allow the mistake to be corrected.

g) Determinations Required. When a proposal is corrected or withdrawn, or correction or withdrawal is denied, a written determination shall be prepared showing that relief was granted or denied in accordance with this Part. The Procurement Officer shall prepare the determination.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2040 Cancellation of Solicitations; Rejection of Bids or Proposals

a) Scope of this Section

The provisions of this Section shall govern the cancellation of any solicitations whether issued by the IOC under competitive sealed bidding, competitive sealed proposals, small purchases, or any other source selection method, and rejection of bids or proposals in whole or in part.

b) Policy

Any solicitation may be canceled when the CPO believes cancellation to be in the State's best interest. Nothing shall compel the award of a contract.

c) Cancellation of Solicitation; Rejection of All Bids or Proposals Prior to Opening

As used in this Section, "opening" means the date set for opening of bids, receipt of unpriced technical offers in multi-step sealed bidding, or receipt of proposals in competitive sealed proposals.
Prior to opening, a solicitation may be canceled in whole or in part when the CPO determines in writing that the action is in the State's best interest for reasons including, but not limited to:

A) the IOC no longer requires the supplies, services or construction;

B) the IOC no longer can reasonably expect to fund the procurement;

C) proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable;

D) ambiguous or otherwise inadequate specifications;

E) the solicitation did not provide for consideration of all factors of significance to the State;

F) prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

G) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

H) there is reason to question whether the bids or proposals may not have been independently arrived at in open competition, may have been the result of collusion or may been submitted in bad faith.

When a solicitation is canceled prior to opening, notice of cancellation shall be sent to all businesses that responded to the solicitation.
The notice of cancellation shall:

A) identify the solicitation;

B) briefly explain the reason for cancellation; and

C) when appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurements of similar supplies, services or construction.

d) Cancellation of Solicitation; Rejection of All Bids or Proposals After Opening

After opening but prior to award, all bids or proposals may be rejected in whole or in part when the CPO determines in writing that such action is in the State's best interest. The reasons for the CPO's determination may include, but are not limited to:

A) the supplies, services or construction being procured are no longer required;

B) ambiguous or otherwise inadequate specifications were part of the solicitation;

C) the solicitation did not provide for consideration of all factors of significance to the IOC;

D) prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

E) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

F) there is reason to believe that the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

When the solicitation is canceled or when all bids or proposals are rejected, all vendors who submitted bids or proposals shall be sent a notice informing them of the cancellation or rejection.

e) Documentation

The reasons for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

f) Rejection of Individual Bids or Proposals

General. This subsection (f) applies to rejections of individual bids or proposals in whole or in part.
Notice in Solicitation. Each solicitation issued by the IOC shall provide that any bid or proposal may be rejected in whole or in part when in the best interest of the State as provided in this Section.
Reasons for Rejection. Reasons for rejecting a bid or proposal may include, but are not limited to:

A) the business that submitted the bid or proposal is nonresponsible as determined under Section 1120.2046;

B) the bid or proposal is not responsive, that is, it does not conform in all material respects to the solicitation;

C) the proposal ultimately fails to meet the announced requirements of the IOC in some material respect;

D) the supply or service item offered in the bid is unacceptable by reason of its failure to meet the requirements of the specifications or permissible alternates or other acceptability criteria set forth in the IFB; or

E) the proposed price is clearly unreasonable.

Notice of Rejection. Upon request, unsuccessful bidders or offerors shall be advised of the reasons for rejection.

g) Disposition of Bids or Proposals

When bids or proposals are rejected, they shall be retained until after award. When a solicitation is canceled, the bids or proposals will be discarded or returned to the vendor at the discretion of the Procurement Officer.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2043 Suppliers

a) An agency with procurement authority may contract with any qualified source of supply, but must give preference to directed sources and should consider the special sources outlined in this Section.

b) Directed Sources − State-Produced Supplies or Services

Correctional Industries. The CPO, after consulting with the Department of Corrections, shall determine the type and extent of the preference given to supplies produced or services performed by Correctional Industries.
Central Services. Supplies and services available from the program operations of DCMS shall be utilized unless the CPO authorizes procurement from other sources.

c) Special Sources

Prior to any equipment procurement, the IOC will consider property available from the State and Federal Surplus Warehouses under the jurisdiction of DCMS.
Various goods and services are available from qualified workshops for the disabled and procurement from these workshops is encouraged. Notice and competition is not required pursuant to Section 45-35 of the Code. Information regarding the workshops will be obtained from DCMS.
Various goods and services are available from State agencies and other governmental units. These may be procured without notice and competition.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2044 Vendor Lists

a) The Procurement Officer may maintain a list of vendors interested in doing business with the IOC. Lists of names and addresses of bidders shall be available for public inspection.

b) Inclusion or exclusion from the vendor list of the name of a business does not indicate whether the business is responsible in respect to a particular procurement or otherwise capable of successfully performing a State contract.

c) IFBs and other solicitations will be sent to vendors on the vendor list for goods or services in question, except in the following cases:

The vendor does not sell the particular commodity or equipment.
The number of vendors for a procurement classification is of such magnitude that optimum prices may reasonably be expected without soliciting the entire vendor list. The IOC may, if it determines that the best interest of the State would be served, rotate the selection from the list on any equitable basis.
The IOC determines that the best interests of the State will be served by limiting vendors to those in defined geographic areas.

d) The Procurement Officer may alternatively refer to vendor lists maintained by DCMS.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2045 Prequalification

a) General

The CPO shall identify by publication in the Bulletin the categories of supplies and services (including professional and artistic services) for which the CPO may prequalify vendors of those supplies and services. The CPO is not required to prequalify vendors but may do so when determination of a vendor's qualification prior to procurement would be advantageous to the State.
The CPO may require that vendors be prequalified as a condition of being placed on the bid list. An opportunity to prequalify shall be allowed at least one time each fiscal year. The opportunity to prequalify shall be announced in the Bulletin. The notice shall alert vendors that failure to participate in the prequalification process may result in the vendor being ineligible to receive contracts.
When prequalifying a vendor, the CPO may limit prequalifications to determining whether a vendor has been and is likely to be "responsible" using the criteria set forth in Section 1120.2046. The fact that a prospective vendor has been prequalified does not necessarily represent a finding of responsibility for a particular procurement.
When prequalifying a vendor, the CPO may consider factors tailored to a specific procurement or type of procurement; the factor shall be announced in the Bulletin.
Except in the case of professional and artistic services, distribution of and responses to the solicitation may be limited to prequalified vendors and award of a contract may be denied because a vendor was not prequalified. If eligibility for the procurement will be limited to prequalified vendors, the IFB, RFP or other procurement request shall state that fact.

b) Professional and Artistic Services

Any prequalification of vendors of professional and artistic services shall include, at a minimum, a specified level of education, experience and technical ability and may require certification, licensure or membership in professional associations.
Categories of services that may be professional, depending on the requirements for education, experience and technical ability, include, but are not limited to:

A) medical;

B) legal;

C) accounting;

D) general consulting.

c) Qualified Products Lists

Qualified products lists are treated in Section 1120.2050.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2046 Responsibility

a) Application

Contracts are to be made only with responsible vendors unless no responsible vendor is available to meet the IOC's needs. If there is doubt about responsibility, and if a bond or other security would adequately protect the State's interests, then that vendor may be awarded a contract upon receipt of the bond or other security.

b) Standards of Responsibility

Standards. Factors to be considered in determining whether the standard of responsibility has been met may include, but are not limited to, whether a prospective vendor:

A) has available the appropriate financial, material, equipment, facility and personnel resources and expertise (or the ability to obtain them) necessary to indicate its capability to meet all contractual requirements;

B) is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments;

D) has a satisfactory record of integrity and business ethics. Vendors who are under investigation or indictment for criminal or civil actions that bear on the particular procurement or that would make contracting with that vendor undesirable may be declared not responsible for the particular procurement;

E) is qualified legally to contract with the State;

F) has supplied all necessary information in connection with the inquiry concerning responsibility;

G) has a current Public Contracts number from the Illinois Department of Human Rights, if required. Proof of application prior to opening of bids or proposals will be sufficient for an initial determination;

H) pays prevailing wages, if required by law; and

I) is current in payment of all State of Illinois taxes, including the unemployment insurance tax.

Information Pertaining to Responsibility. The prospective vendor shall supply information requested by the Procurement Officer concerning the responsibility of the vendor. The IOC may supplement this information from other sources and may require additional documentation at any time. If the vendor fails to supply the requested information, the CPO shall base the determination of responsibility upon any available information, or may find the prospective vendor nonresponsible.

c) Ability to Meet Standards

The prospective vendor may demonstrate the availability of necessary financing, equipment, facilities, expertise and personnel by submitting upon request:

evidence that the vendor possesses the necessary items;
acceptable plans to subcontract for the necessary items; or
a documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items.

d) Duty Concerning Responsibility

Before awarding a contract, the CPO must be satisfied that the prospective vendor is responsible. Responsibility can be proven until time of contract execution unless the solicitation or other law requires earlier proof.

e) Written Determination of Nonresponsibility Required

If a vendor who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the CPO. The final determination shall be made part of the procurement file.

f) Bond for Responsibility

Vendors not having a history of performance may be considered responsible if no other disqualifying factors exist. A bond or other security may be required of those vendors.

g) Affiliated Companies

Vendors who are newly formed business concerns having substantially the same owners, officers, directors or beneficiaries as a previously existing nonresponsible vendor will be declared nonresponsible unless the new organization can prove it was not set up for the purpose of avoiding an earlier declaration of nonresponsibility.

h) Vendor Under Investigation

A vendor under investigation by a governmental agency may be determined nonresponsible by the CPO.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2047 Security Requirements

a) The CPO may require that a vendor furnish bid, proposal or performance security on IOC contracts. Whenever security is required, except as provided in this Section, the procurement document will clearly indicate the type and amount of security.

c) Unless the amount is set by law, the CPO will determine the amount, in dollars or percentage of contract price, that will adequately protect the State's interests.

d) A vendor may be required to furnish up to 100% performance security at any time during contract performance and at its cost, if it appears that delivery or production schedules cannot be met, quality is poor, or responsibility is questioned, and for similar reasons.

e) Permissive/Mandatory Security

Bid or proposal security is permissive on any contract but is not appropriate on emergency or sole source procurements.
Performance security is permissive on any contract and is recommended on contracts calling for advance payment.
Performance security is required on all public works contracts.

f) A vendor may submit a single or continuous security each year that will be applicable on all IOC contracts. When the security has been obligated in an amount equal to the sum of accumulated security requirements, additional security must be submitted.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2050 Specifications and Samples

a) CPO Responsibilities Regarding Specifications

The CPO is authorized to write IOC procurement specifications.
If a specification for general or common use or a qualified products list exists for an item to be procured under Section 20-20 of the Code (Small Purchases), it shall be used except as otherwise authorized by the CPO. If no such specification exists, the CPO shall have the authority to prepare specifications for use in the purchases. In an emergency under Section 20-30 of the Code, any necessary specification may be utilized without regard to the provisions of this Subpart.

b) Procedures for the Development of Specifications

If a specification for a common or general use item has been developed or a qualified products list has been developed in accordance with this Section for a particular supply or service, it shall be used unless the CPO authorizes use of another specification.
All procurements shall be based on specifications that accurately reflect the IOC's needs. Specifications shall clearly and precisely describe the salient technical or performance requirements.
Specifications shall not include restrictions that do not significantly affect the technical requirements or performance requirements, or other legitimate IOC needs. All specifications shall be written in such a manner as to describe the requirements to be met, without having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.
Any specifications or standards adopted by a business, industry, not-for-profit organization or governmental unit may be adopted by reference.
A specification may provide alternate descriptions when two or more design, functional or performance criteria will satisfactorily meet the IOC's requirements.

c) Brand Name or Equal Specification

Brand name or equal specifications may be used when the CPO determines in writing that:

A) no specification for a common or general use specification or qualified products list is available;

B) time does not permit the preparation of another form of specification, not including a brand name specification;

C) the nature of the product or the nature of the IOC's requirement makes use of a brand name or equal specification suitable for the procurement; or

D) use of a brand name or equal specification is in the State's best interest.

Brand name or equal specifications shall seek to designate more than one brand as "or equal", and shall further state that substantially equivalent products to those designated will be considered for award.
Required Characteristics. Unless the CPO determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional or performance characteristics that are required.
Nonrestrictive Use of Brand Name or Equal Specifications. When a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use. Burden of proof that a product is equal is on the bidder.

d) Brand Name Only Specification

Determination. A brand name only specification may be used only when the CPO makes a written determination that only the identified brand name item or items will satisfy the IOC's needs.
Use. Brand name alone may be specified in order to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the CPO.
Competition. The CPO shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made under Section 1120.2025.
Small and Emergency Procurements. Brand name only specifications may be used when procuring items under Section 1120.2020 and Section 1120.2025.

e) Qualified Products List

Use. A qualified products list may be developed when testing or examining supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy IOC requirements.
Solicitation. When developing a qualified products list, a representative group of potential suppliers shall be solicited in writing to submit products for testing and examination to determine acceptability for inclusion in a qualified products list. Any potential supplier, even though not solicited, may offer its products for consideration during the time allowed for testing and examination.
Testing and Confidential Data. Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements. Except as otherwise provided by law, trade secrets, test data and similar information provided by the supplier will be kept confidential when requested in writing by the supplier.

f) Proven Products

The supply or service may be rejected if it has not been offered to other governmental or commercial accounts for at least one year. Specifications may require that the supply or services must have been used in business or industry for a specified period of time to be considered.

g) State Required Samples

Any required samples must be submitted as instructed in the solicitation with transportation prepaid by the vendor. Each sample must be labeled with the vendor's name, address and a means of matching the sample with the applicable bid or proposal.
Any sample submitted must be representative of the item that would be delivered if a contract were awarded for that item. Samples submitted by a successful vendor will be retained to check continuing quality. Submission of samples will not limit the IOC's right to require adherence to specifications.
No payment will be made for IOC required samples. Samples not destroyed or consumed by examination or testing will be returned upon request and at vendor's expense. The request must be made at time of submission with return collect or prepayment provisions and instructions for return accompanying the samples.

h) Product Demonstration

Any vendor may request time and space to demonstrate a product or service. Agreement to allow the demonstration will be solely at the IOC's discretion and will not entitle the bidder to a contract, nor shall payment for the demonstration be allowed unless a written contract had been executed prior to the demonstration.

i) Specifications Prepared by Other Than IOC Personnel

Specifications may be prepared by other than IOC personnel, including, but not limited to, consultants, architects, engineers, designers and other drafters of specifications for public contracts when the CPO determines that there will be no substantial conflict of interest involved and it is otherwise in the best interests of the State, and provided the CPO retains the authority for final approval of the specifications. Contracts for the preparation of specifications by other than IOC personnel shall require the specification writer to adhere to the Code and the IOC requirements.
The person who prepared the specifications shall not submit a bid or proposal to meet the procurement need unless the Comptroller determines in writing that it would be in the best interest to accept such a bid or proposal from that person. A notice to that effect shall be published in the Bulletin.

j) Pre-solicitation Assistance/Specifications Prepared by Other Than State Personnel

Prior to issuing a solicitation, a CPO may issue an RFI to obtain services of any person or business to conduct research, analyze requirements or provide general design or other assistance to help IOC develop its procurement strategy, specifications and documents and to identify and address other related needs. No services can be obtained to assist IOC in reviewing, drafting and preparing an RFP or RFI or to provide similar assistance.
Notice. An RFI shall be published in the Bulletin for at least 7 calendar days. All information received in response to an RFI shall be published in the Bulletin for at least 7 calendar days.
The RFI shall contain at least the following:

A) the name of the requesting agency;

B) a brief description of the agency's needs; and

C) a statement that the RFI is not a solicitation.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2055 Types of Contracts

a) Scope of Rule

This Subpart contains descriptions of types of contracts and limitations as to when they should be utilized by the IOC in its procurements. Types of contracts not mentioned in this Section may also be utilized.

b) Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

The cost-plus-a-percentage-of-cost contract is prohibited by Section 20-55 of the Code. This type of contracting may not be used alone or in conjunction with an authorized type of contract.

c) Types of Fixed-Price Contracts

Firm Fixed-Price Contract. A firm fixed-priced contract provides a price that is not subject to adjustment because of variations in the contractor's cost of performing the work specified in the contract.
Fixed-Price Contract with Price Adjustment

A) A fixed-price contract with price adjustment provides for variation in the contract price under special conditions defined in the contract, other than customary provisions authorizing price adjustments due to modifications to the work. The formula or other basis by which the adjustment in contractor price can be made shall be specified in the solicitation and the resulting contract. Adjustment allowed may be upward or downward only, or both upward and downward. Examples of conditions under which adjustments may be provided in fixed-price contracts are:

i) changes in the contractor's labor agreement rates as applied to an industry or areawide (such as are frequently found in contracts for the purchase of coal);

ii) changes due to rapid and substantial price fluctuations, that can be related to an accepted index (such as contracts for gasoline, heating oils and dental gold alloy); and

iii) in requirement contracts when a general price change applicable to all customers occurs, or when a general price change alters the base price (such as a change in a manufacturer's published price list or posted price to which a fixed discount is applied pursuant to the contract to determine the contract price).

B) If the contract permits unilateral action by the contractor to bring about the condition under which a price increase may occur, the IOC shall retain the right to reject the price increase and terminate without cost the future performance of the contract.

d) Cost-Reimbursement Contracts

Determination Prior to Use

A) A cost-reimbursement type contract may be used only when the CPO determines in writing that such a contract is likely to be less costly to the IOC than any other type or that it is impracticable to obtain otherwise the supplies or services.

B) Reimbursement of travel expenses in accordance with applicable travel control board regulations is authorized without further determinations.

Cost Contract. A cost contract provides that the contractor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee.
Cost-Plus-Fixed-Fee Contract. This is a cost-reimbursement type contract that provides for payment to the contractor of an agreed fixed fee in addition to reimbursement of allowable incurred costs. The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for such work. Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed. The fee is subject to adjustment only if the contract is modified to provide for an increase or decrease in the scope of work specified in the contract. The cost-plus-fixed-fee contract can be either a completion form or term form.
Cost Incentive Contracts

A) General. A cost-incentive type of contract provides for the reimbursement to the contractor of allowable costs incurred up to the ceiling amount and establishes a formula whereby the contractor is rewarded for performing at less than target cost (that is, the parties' agreed best estimate of the cost of performing the contract will vary inversely with the actual, allowable costs of performance and consequently is dependent on how effectively the contractor controls cost in the performance of the contract).

B) Fixed-Price Cost-Incentive Contract. In a fixed-price cost-incentive contract, the parties establish at the outset a target cost, a target profit (that is, the profit that will be paid if the actual cost of performance equals the target cost), a formula that provides a percentage increase or decrease of the target profit depending on whether the actual cost of performance is less than or exceeds the target cost, and a ceiling price. After performance of the contract, the actual cost of performance is arrived at based on the total incurred allowable costs as provided in the contract. The final contract price is then established in accordance with the formula using the actual cost of performance. The final contract price may not exceed the ceiling price. The contractor is obligated to complete performance of the contract, and, if actual costs exceed the ceiling price, the contractor suffers a loss.

C) Cost-Reimbursement Contract with Cost-Incentive Fee. In a cost-reimbursement contract with cost-incentive fee, the parties establish at the outset a target cost; a target fee; a formula for increase or decrease of fee depending on whether actual cost of performance is less than or exceeds the target cost, with maximum and minimum fee limitations; and a cost ceiling that represents the maximum amount that the IOC is obligated to reimburse the contractor. The contractor continues performance until the work is complete or costs reach the ceiling specified in the contract, including any modification thereof, whichever first occurs. After performance is complete or costs reach the ceiling, the total incurred, allowable costs reimbursed as provided in the contract are applied to the formula to establish the incentive fee payable to the contractor.

e) Performance Incentive Contracts

In a performance incentive contract, the parties establish at the outset a pricing basis for the contract, performance goals, and a formula that varies the profit or the fee if the specified performance goals are exceeded or not met. For example, early completion may entitle the contractor to a bonus, while late completion may entitle the IOC to a price decrease.

f) Time and Materials Contracts; Labor Hour Contracts

Time and materials contracts provide an agreed basis for payment for materials supplied and labor performed. Labor hour contracts provide only for the payment of labor performed. These contracts shall, to the extent possible, contain a stated ceiling or an estimate that shall not be exceeded without prior IOC approval.

g) Definite Quantity and Indefinite Quantity Contracts

Definite Quantity. A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services either at specified times or when ordered.
Indefinite Quantity. An indefinite quantity contract is a contract for an indefinite amount of supplies or services to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type. Generally an approximate quantity or the best information available as to quantity is stated in the solicitation. The contract may provide a minimum quantity the IOC is obligated to order and may also provide for a maximum quantity provision that limits the IOC's obligation to order.
Requirements Contracts. A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the IOC to order all the actual IOC requirements during a specified period of time.

h) Leases

A lease is a contract for the use of supplies or real property under which title will not pass to the IOC at any time.

i) Recovery Contracts

j) Option Provisions

Contract Provision. When a contract is to contain an option for renewal, extension or purchase, notice of that provision shall be included in the solicitation. These options may be exercised without taking other procurement action when the option is established for exercise at the IOC's option.
Lease with Purchase Option. A purchase option in a lease may be exercised only if the lease containing the purchase option was awarded under competitive sealed bidding or competitive sealed proposals.

k) State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available from the State's own programs, such as Correctional Industries, may be ordered without violating any contract.

l) Extraordinary Quantities

Notwithstanding any provision in any contract, the IOC reserves the right to take bids separately if a particular quantity requirement arises that exceeds the IOC's normal needs or ordering requirements.

m) Energy Conservation

The CPO may authorize an IFB, RFP or sole source negotiation for energy conservation measures whereby the IOC would make payment based on utility cost savings. The contract shall require a clearly defined baseline of energy usage and method of measuring cost savings taking into account at least differing weather conditions, changes in facility, usage and cost of energy.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2060 Duration of Contracts - General

a) General

A multi-term contract for a term of up to 10 years is authorized when determined by the CPO to be in the best interest of the State, inclusive of proposed contract renewals.
A software license may have a term longer than 10 years, including for a perpetual term, provided the payment term is limited to no more than 10 years.
The length of the payment terms of the bonds issued by or on behalf of the IOC shall be limited as provided in the statute authorizing the issuance of bonds.

b) The contractual obligation of both parties in each fiscal period succeeding the first is subject to the appropriation and availability of funds. The contract shall provide that, in the event that funds are not available for any succeeding fiscal period, the remainder of the contract shall be canceled without penalty to, or further payment being required by, the IOC. This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

c) Conditions for Use of Multi-Year Contracts

A multi-year contract may be used when:

special production of definite quantities or the furnishing of long-term services are required to meet IOC needs; or
a multi-year contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement. The following factors are among those relevant to such a determination:

C) stabilization of the contractor's work force over a longer period of time may promote economy and consistent quality; or

D) the cost and burden of contract solicitation, award and administration of the procurement may be reduced.

d) Multi-Year Contract Procedure

The solicitation shall state:

the proposed term;
the amount of supplies or services required for the proposed contract period;
the type of pricing requested (e.g., firm or term); and
how the award will be determined.

e) Renewals

When the original procurement specifically called for an initial term plus renewals, the renewals may be exercised without further procurement activity, provided the initial term and the exercised renewals may not exceed 10 years, the terms and conditions do not change except as provided in the contract (such as price escalations tied to an index) and the option to renew is reserved solely to the IOC or to mutual agreement of the parties.
When a renewal will result in the total term, counting the initial term and any previous renewals, exceeding 10 years, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part. This renewal will start a new term that shall not exceed 10 years.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2560 Prevailing Wage (repealed)

History

Source: Repealed at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2570 Equal Employment Opportunity: Affirmative Action

a) Every party to a public contract and every eligible bidder shall:

Refrain from unlawful discrimination and discrimination based on citizenship status in employment and undertake affirmative action to assure equality of employment opportunity and eliminate the effects of past discrimination;
Comply with the procedures and requirements of the Department of Human Right's regulations concerning equal employment opportunities and affirmative action;
Provide such information with respect to its employees and applicants for employment and assistance as the Department of Human Rights may reasonably request;
Have written sexual harassment policies that include, at a minimum, the following information:

A) the illegality of sexual harassment;

B) the definition of sexual harassment under State law;

C) a description of sexual harassment, utilizing examples;

D) the vendor's internal complaint process, including penalties;

E) the legal recourse, investigation and complaint processes available through the Department of Human Rights and the Human Rights Commission;

F) directions on how to contact the Department of Human Rights and the Human Rights Commission;

G) protection against retaliation as provided by Section 6-102 of the Illinois Human Rights Act [775 ILCS 5/6-102].

A copy of the policies shall be provided to the Department of Human Rights upon request.

b) Section 7-105(A) of the Illinois Human Rights Act [775 ILCS 5/7-105(A)] authorizes the Department of Human Rights to promulgate policies, rules, and regulations to implement the provisions of the Illinois Human Rights Act applicable to eligible bidders and public contractors. The Department of Human Rights has promulgated rules (44 Ill. Adm. Code 750) that establish public contractor and eligible bidder duties, obligations, and reporting requirements. 44 Ill. Adm. Code 750.210 requires certain employers to register with the Department of Human Rights in order to be eligible for the award of certain public contracts.

c) Every contract entered into or awarded by the IOC shall include the following provision:

EQUAL EMPLOYMENT OPPORTUNITY

In the event of the contractor's non-compliance with the provisions of this Equal Employment Opportunity Clause, the Illinois Human Rights Act, or the Rules and Regulations of the Illinois Department of Human Rights (Department), the contractor may be declared ineligible for future contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations, and the contract may be cancelled or voided in whole or part, and such other sanctions or penalties may be imposed or remedies invoked as provided by statute or regulation. During the performance of this contract, the contractor agrees as follows:

That it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin or ancestry, age, physical or mental handicap unrelated to ability, or an unfavorable discharge from military service; and further that it will examine all job classifications to determine if minority persons or women are underutilized and will take appropriate affirmative action to rectify any such underutilization;
That, if it hires additional employees in order to perform this contract or any portion thereof, it will determine the availability (in accordance with the Department's Rules) of minorities and women in the areas from which it may reasonably recruit and it will hire for each job classification for which employees are hired in such a way that minorities and women are not underutilized.
That, in all solicitations or advertisements for employees placed by it or on its behalf, it will state that all applicants will be afforded equal opportunity without discrimination because of race, color, religion, sex, marital status, national origin or ancestry, age, physical or mental handicap unrelated to ability, or an unfavorable discharge from military service;
That it will send to each labor organization or representative of workers with which it has or is bound by a collective bargaining or other agreement or understanding a notice advising such labor organization or representative of the contractor's obligations under the Illinois Human Rights Act and the Department's Rules. If any such labor organization or representative fails or refuses to cooperate with the contractor in its efforts to comply with such Act and Rules, the contractor will promptly so notify the Department and the contracting agency and will recruit employees from other sources when necessary to fulfill its obligations thereunder;
That it will submit reports as required by the Department's Rules, furnish all relevant information as may from time to time be requested by the Department or contracting agency, and in all respects comply with the Illinois Human Rights Act and the Department's Rules;
That it will permit access to all relevant books, records, accounts, and work sites by personnel of the contracting agency and the Department for purposes of investigation to ascertain compliance with the Illinois Human Rights Act and the Department's Rules; and
That it will include verbatim or by reference the provisions of this clause in every subcontract it awards under which any portion of the contract obligations are undertaken or assumed, so that such provisions will be binding upon such subcontractor. In the same manner as with other provisions of this contract, the contractor will be liable for compliance with applicable provisions of this clause by such subcontractors; and, further, it will promptly notify the Office of the Comptroller and the Department in the event any subcontractor fails or refuses to comply therewith. In addition, the contractor will not utilize any subcontractor declared by the Illinois Human Rights Commission to be ineligible for contracts or subcontracts with the State of Illinois or any of its political subdivisions or municipal corporations.

History

Source: Added at 25 Ill. Reg. 14380, effective November 10, 2001

44 Ill. Adm. Code 1120.2580 Subcontractors

All competitive sealed proposals, including proposals for professional and artistic services, shall include a provision to require each offeror to identify, in its proposal or prior to award, the identity of each subcontractor that will be used in the performance of the contract, as well as the amounts expected to be paid to each subcontractor.

History

Source: Added at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.2800 All Costs Included

The IFB or RFP and any resulting contract should define whether prices cover transportation, transit insurance, delivery, installation, taxes, and any other costs.

44 Ill. Adm. Code 1120.3005 Construction and Construction-Related Professional Services

Construction and Construction-Related Professional Services shall be procured by the CPO in accordance with the State Comptroller Act [15 ILCS 405/2] under rules promulgated by the Capital Development Board (44 Ill. Adm. Code 910).

44 Ill. Adm. Code 1120.4005 Real Property Leases and Capital Improvement Leases

Real property leases and capital improvement leases shall be procured in accordance with Article 40 of the Code, this Part, and 44 Ill. Adm. Code 5000. In the event of a conflict, 44 Ill. Adm. Code 5000 shall prevail.

44 Ill. Adm. Code 1120.4505 Procurement Preferences

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts. When any such preference is utilized, the IFB, RFP or other procurement request shall identify the preference and the conditions associated with its use. Subsequent Sections of this Subpart O identify conditions for the use of certain of the statutory preferences.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.4510 Resident Bidder Preference

a) "Illinois resident vendor" as used in this Section means a person authorized to transact business in this State and having a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when any competitive solicitation for a public contract was first advertised or announced, including a foreign corporation duly authorized to transact business in this State that has a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when any competitive solicitation for a public contract was first advertised or announced.

b) In breaking a tie, an Illinois resident vendor shall be given the award.

c) An Illinois resident vendor who would perform the services or provide the supplies from another state shall be considered a resident of that other state as against an Illinois resident vendor who would perform the services or provide the supplies from Illinois, if that other state has an in-state preference.

d) If an Illinois resident vendor produces or performs at least 51% of the goods or services in another state, that Illinois resident vendor shall be considered a resident of that other state for purposes of application of this reciprocal preference when evaluating the bid of an Illinois resident contractor that produces or performs at least 51% of the goods or services in Illinois.

e) The CPO may refer to the list of states with in-state preference maintained by DCMS, which shall be considered in all procurements involving out-of-state vendors.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.4530 Correctional Industries

a) The CPO shall refer to the listing maintained by DCMS of the goods or services available and mandatorily purchased from the Department of Corrections.

b) Those items that must be purchased from Corrections may not be procured from any other source without the express written authorization of the CPO.

c) The CPO may procure from Corrections without seeking competition or giving public notice.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.4535 Sheltered Workshops for the Disabled

a) Use of Sheltered Workshop

The CPO shall refer to information prepared by DCMS concerning qualified sheltered workshops and categories of goods and services set aside to those sheltered workshops by DCMS. To the extent practicable, the IOC will observe such set asides.

b) Pricing Approval

While notice and competition is not required prior to contracting with a sheltered workshop, prices must be reasonable. Whether a price is reasonable will be determined based upon current market prices, historical prices, prices received by other State agencies for similar goods or services, the policy of the Code to promote procurements from sheltered workshops, and other such relevant factors.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.4540 Gas Mileage

a) Vehicle specifications shall require compliance with minimum gas mileage requirements established in Section 45-40 of the Code.

b) Exceptions must be approved by the CPO and must fully describe the circumstances necessitating a noncompliant vehicle.

c) No exceptions will be granted unless it is clear that a noncompliant vehicle is necessary.

44 Ill. Adm. Code 1120.4545 Small Business

a) Set-Aside

The CPO-GS may determine categories of goods or services procurements that will be set aside for small business located in Illinois. The SPO may contact the CPO-GS to determine whether a particular procurement has been set aside for small business, and, if so, the IOC may honor the set aside to the extent practicable.

b) Small Business List

The IOC may refer to the list of responsible vendors that meet the criteria of small business maintained by the CPO-GS. A business that fits the definition of small on the day of bid or proposal opening will be considered small for the duration of the contract.

c) Required Use

If the SPO wishes to make a procurement covered by a set-aside designation, the solicitation must note responses are limited to those from responsible small businesses. Bids or proposals received from large businesses will be rejected as nonresponsive.

d) Withdrawal of Set-Aside

If the SPO determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the SPO shall reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question. When a small business set-aside is withdrawn, notification shall be published in the Illinois Procurement Bulletin with an explanation. After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with the limitations of the Code and this Part.

e) Criteria for Small Business

Unless the SPO provides a definition for a particular procurement that reflects industrial characteristics, a small business is one:

Independently owned and operated.
Not dominant in its field of operations. This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
With annual sales for most recently ended fiscal year no greater than:

A) $10,000,000 for wholesale business;

B) $10,000,000 for construction business; or

C) $6,000,000 for retail business.

With no more than 250 employees if a manufacturing business.

If the business is any combination of retailer, wholesaler or construction business, the annual sales for each component may not exceed the higher of $10,000,000 for a wholesaler, $6,000,000 for a retailer, $10,000,000 for a construction business, or the amounts shown in Section 45-45 of the Code. For example, a business that is both a retailer and wholesaler may not have total sales exceeding $16,000,000 and the retail component may not exceed $6,000,000 and the wholesale component may not exceed $10,000,000. If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed the number shown in subsection (e)(4).
When computing the size status of a vendor, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates shall be included. Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or when a third party or parties control or have the power to control both. In determining whether concerns are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management and contractual arrangements. However, a franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.4550 Contracting with Business Owned and Controlled by Minorities, Women, and Persons with Disabilities

a) The Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575/0.01] (Act) sets a goal (minimum 20%) for contracting with businesses owned by minorities, women, or persons with disabilities.

b) IOC hereby establishes a goal that at least 20% of the dollar amount of contracts be awarded to businesses owned by minorities, women, or persons with disabilities. Of that 20%, 7% shall be for women-owned businesses, 2% for businesses owned by persons with disabilities and not-for-profit entities for the disabled, and the remaining 11% for minority-owned businesses, unless these amounts are modified by the Business Enterprise Council for Minorities, Women, and Persons with Disabilities created under Section 5 of the Act [30 ILCS 575/5].

c) The goal established in subsection (b) may be satisfied, in whole or in part, by counting expenditures made by IOC vendors to subcontractors.

d) The CPO may undertake the following actions to reach the goal established in subsection (b):

focus solicitation upon vendors from the list of certified businesses ascertained by the Business Enterprise Council for Minorities, Women, and Persons with Disabilities;
advertise in appropriate media;
divide job or project requirements, when economically, technically, and programmatically feasible, into smaller tasks or quantities;
eliminate extended experience or capitalization requirements when programmatically feasible;
identify specific, proposed projects, purchases, or contracts as particularly appropriate for participation by businesses owned by minorities, women, or persons with disabilities; and
establish set-asides in accordance with applicable law.

e) The Act and the rules promulgated thereunder (44 Ill. Adm. Code 10) set forth the procedures for certification as a business owned by minorities, women, or persons with disabilities.

f) The CPO shall acquire and maintain a list of businesses certified by the Business Enterprise Council for Minorities, Women, and Persons with Disabilities. The names and addresses of certified vendors shall be made available to the public.

g) Those categories of contracts and expenditures exempted by the Business Enterprise Council for Minorities, Women, and Persons with Disabilities as set forth in its rules (44 Ill. Adm. Code 10.22) are exempt from the contracting goal established in this Section. In addition, the CPO may exempt specific contracts or expenditures from the goal prior to the advertisement for bids or solicitation of proposals, when the CPO has determined, based upon the best information available at the time of the determination, that there is an insufficient number of businesses owned by minorities, women, and persons with disabilities to ensure adequate competition and an expectation of reasonable prices on bids or proposals solicited for the specific contract or expenditure. A determination of the CPO made under this subsection shall be reduced to writing and published in the Illinois Procurement Bulletin.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.5013 Conflicts of Interest Prohibited by the Code

c) Distributable income means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, and the remaining amount is actually distributed to those entitled to receive a share of that income. In the case of a for-profit corporation, distributable income means "dividends". When calculating entitlement to distributable income, the entitlement shall be determined at the end of the company's most recent fiscal year.

d) This Section applies to those elected to an office of Illinois State government. This Section does not apply to those elected to local government offices, including school districts, nor does it apply to those elected to federal offices in this State. This Section does not apply to contracts with licensed professionals, provided those contracts are competitively bid. For purposes of this Section, "bid" means procured pursuant to the competitive procedures identified in Subpart E.

e) Additional exemptions to the application of this Part are listed in Section 50-13(f) of the Code.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.5015 Negotiations for Future Employment

a) An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an independent contractor is in a "continued contractual relationship" for the effective date of the contract until such time as the contract is terminated.

b) An individual who performs services pursuant to a contract and who meets the requirements of an "independent contractor" as opposed to an "employee" is in a "continued contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individuals option, is renewable unless the State must act to terminate, or has a definite term of at least three months.

44 Ill. Adm. Code 1120.5020 Exemptions

If the CPO finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the Comptroller shall decide in writing whether to grant an exception and place the written determination in the contract file.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5030 Revolving Door

The CPO shall identify in writing his or her designees whose job, or whose position description, is at least 51% directly related to State procurement. The following activities are directly related to State procurement: drafting specifications, preparing IFBs and RFPs, evaluating responses to IFBs and RFPs, negotiating contracts and supervising any of the foregoing. The CPO shall maintain a record of the designees for at least two years following the end or revocation of the designation.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5035 Disclosure of Financial Interests and Potential Conflicts of Interest

a) For purposes of Section 50-35(a) of the Code, an "offer from responsive bidders or offerors" means only those offers that are received using an IFB or RFP under Section 20-10, 20-15 or 20-35 or Article 35 of the Code. Disclosures are not required in small, sole source or emergency procurements.

b) Definitions

For purposes of Section 50-35(b) of the Code, "parent entity" means a person who owns 100% of the bidding entity.
For purposes of Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, which is by and between the State and the named individual.

d) Personal Services shall be any contract for services subject to the Code including, by way of example, professional and artistic services, repair services, and cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

e) "Competitively bid" means a contract let pursuant to Section 20-10, 20-15 or 20-35 of the Code.

f) The CPO may prescribe forms for the disclosure of potential conflicts of interest and financial interests of bidders or offerors required under Section 50-35 of the Code.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5040 Lobbying Restrictions

b) Disclosure

Any bidder or offeror on a State contract that hires a person required to register under the Lobbyist Registration Act [25 ILCS 170] to assist in obtaining a contract shall:

A) disclose all costs, fees, compensation, reimbursements, and other remunerations paid or to be paid to the lobbyist related to the contract;

B) not bill or otherwise cause the State of Illinois to pay for any of the lobbyist's costs, fees, compensation, reimbursements, or other remuneration; and

C) sign a verification certifying that none of the lobbyist's costs, fees, compensation, reimbursements, or other remuneration were billed to the State.

The information in subsection (b)(1)(A), along with all supporting documents, shall be filed with the CPO and with the Secretary of State. The CPO shall post this information, together with the contract award notice, in the Bulletin. [30 ILCS 500/50-38(b)]

c) No person or entity shall retain a person or entity required to register under the Lobbyist Registration Act to attempt to influence the outcome of a procurement decision for compensation contingent in whole or in part upon the decision or procurement. Any person who violates this subsection is guilty of a business offense and shall be fined not more than $10,000. [30 ILCS 500/50-38(c)]

History

Source: Added at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5310 Concessions

Proposed concessions or leases of State property under this provision of the Code must be coordinated with DCMS to ensure compliance with the State Property Control Act [30 ILCS 605] and rules implementing that Act.

44 Ill. Adm. Code 1120.5510 Complaints Against Vendors or Subcontractors

a) The purpose of this Section is to document performance of vendors or subcontractors.

b) Whenever a vendor or subcontractor fails to meet contract requirements, including but not limited to failure to deliver on time or meet specifications, the IOC shall take appropriate action to initiate a complaint to the vendor or subcontractor.

c) For relatively minor infractions, the IOC may initiate contact by telephone or in person. If not resolved by this action, a written complaint should be made.

d) If the initial complaint is not satisfactorily answered, or for serious infractions, the IOC shall send a written complaint to the vendor or subcontractor detailing the problem. For complaints regarding contracts established by the CPO, a form available from the CPO shall be used for processing complaints.

e) A copy of all written complaints and the resolution or status shall be filed with the CPO.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5520 Suspension

a) Application

This Section applies to all debarments or suspensions of vendors or subcontractors from consideration for award of contracts under the Code.

b) The CPO may suspend a vendor or subcontractor from doing business with the IOC or for specific types of supplies or services. A suspension may be issued upon a showing the vendor or subcontractor violated the Code or this Part or failed to conform to specifications or terms of delivery.

c) When the CPO finds cause exists for suspension, a notice of suspension, including a copy of the CPO's determination, shall be sent to the suspended vendor or subcontractor. Bids or proposals will not be solicited from the suspended vendor or subcontractor and, if received, will not be considered during the period of suspension.

d) A vendor or subcontractor may be suspended for a period of time commensurate with the seriousness of the offense, but for no more than five years. The suspension will be effective within seven calendar days after receipt of notice unless an objection is filed. If an objection is filed, suspension would not become effective until the evaluation of the objection is completed.

e) The CPO may debar a vendor or subcontractor. Debarment is the permanent suspension of a vendor or subcontractor from doing business with the IOC. A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law. Bids or proposals received from the debarred vendor will not be considered.

f) The CPO shall maintain a master list of all IOC suspensions and debarments and refer to the DCMS master list of all suspensions and debarments. The master list will retain information concerning suspensions and debarments as public records. These records will be maintained for a period of at least three years following the end of the suspension or debarment. The public information may be considered in determining responsibility.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5530 Settlement and Resolution of Contract and Breach

a) Authority to Settle or Resolve Controversies

The CPO shall have authority to settle and resolve controversies, but the Comptroller may set limits on that authority.

b) Authority of Using Agency

The IOC has the authority to accept delivery of goods or services in accordance with contract requirements as satisfactory adjustment of a complaint.

c) Substitution of Terms/Price Reduction

If the vendor proposes to make an adjustment by substituting an alternative specification or reducing the contract price by a certain amount to compensate for some failure to provide full performance under the contract, the proposal must be referred to and approved by the CPO.

d) Cancellation for Breach of Contract

In any of the following cases the CPO shall have the right to terminate or rescind any contract entered into under this Part:

The successful bidder fails to furnish a satisfactory performance bond within the time specified.
The vendor fails to make delivery at the place or within the time specified in the contract or as ordered by the IOC.
Any goods or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's goods or service, this shall be grounds for termination or rescission, even though the vendor offers to replace the goods or services promptly.
The vendor is guilty of misrepresentation (for example, misbranding of food or drugs) in connection with another contract for the sale of goods or services to the IOC so that the vendor cannot reasonably be depended upon to fulfill his obligations as a responsible vendor under any contracts with the IOC.
The vendor is adjudged bankrupt; enters into a general assignment for the benefit of his or her creditors or into receivership due to insolvency; disregards laws and ordinances, rules or instructions of the IOC; or acts in violation of any provision of the contract or this Part; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.
Any other breach of contract or other unlawful act by the vendor, its agents and/or subcontractor.

e) Cancellation for Fraud, Collusion and Illegality

The IOC may cancel any contract it established if there is sufficient evidence to show that:

The contract was obtained by fraud, collusion, conspiracy or other unlawful means; or
The contract conflicts with any statutory provision of the State of Illinois or of the United States.

f) Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the IOC may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the State of Illinois for any damages suffered by it because of the vendor's breach of contract or other unlawful act on the vendor's part on which the cancellation is based.

g) Damages

The damages for which the IOC may be compensated as provided in this Section or by a suit on the vendor's performance bond or by other legal remedy shall include, but are not limited to, the following:

the additional cost of goods or services bought elsewhere;
cost of repeating the procurement procedure;
any expenses incurred because of delay in receipt of goods or services; and
any other damages caused by the vendor's breach of contract or unlawful act.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5540 Violation of Statute or Rule

a) Determination that Solicitation or Award Violates Law

If the Procurement Officer finds that the solicitation or proposed award is in violation of statute or rule, the CPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if such correction may be legally accomplished.

b) Determination that Contract Violates Statute or Rule

Contracts based on awards or solicitations that were in violation of law shall be terminated at no cost to the IOC.

c) Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the IOC shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.5550 Protests

a) Protest Resolution by the CPO

An actual or prospective bidder, offeror or contractor that may be aggrieved in connection with a procurement may file a protest on any phase of solicitation or award, including but not limited to specifications preparation, bid solicitation or award.

b) Complaint

Complainants should seek resolution of their complaints initially with IOC. Complaints may be made verbally or in writing.

c) Filing of Protest

Protests shall be made in writing to the CPO and shall be filed within 14 calendar days after the protester knows or should have known of the facts giving rise to the protest. A protest is considered filed when physically received by the Procurement Officer. Protests filed after the 14 calendar day period shall not be considered. With respect to a protest regarding specifications, the protest must be received within 14 calendar days after the date the solicitation was issued, and in any event must be received by IOC at the designated address before the date for opening of bids or proposals.
To expedite handling of protests, the envelope should be labeled "Protest". The written protest shall include as a minimum the following:

A) the name and address of the protester;

B) appropriate identification of the procurement and, if a contract has been awarded, its number;

C) a statement of reasons for the protest; and

D) supporting exhibits, evidence or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated.

d) Requested Information; Time for Filing

Any additional information requested by IOC shall be submitted within the time periods established by the requesting source in order to expedite consideration of the protest. Failure of the protesting party to comply expeditiously with a request for information by the Procurement Officer may result in resolution of the protest without consideration of that information.

e) Stay of Procurements During Protest

When a protest has been timely filed and before an award has been made, the CPO shall make no award of the contract and any award made shall be stayed until the protest has been resolved. The Comptroller may authorize award or reinstate the contract if necessary to protect the interests of the State.

f) Decision by the CPO

Time for Decisions. A decision on a protest shall be made by the CPO as expeditiously as possible after receiving all relevant requested information. If a protest is sustained, the available remedies include, but are not limited to, reversal of award and cancellation or revision of the solicitation.

g) Effect of Judicial or Administrative Proceedings

If an action concerning the protest has commenced in court, the CPO shall not act on the protest but shall refer the protest to IOC's Chief Legal Counsel.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.5560 Hearings and Decisions

a) This Section shall govern public hearings held prior to awarding contracts for sole source procurements pursuant to Section 20-25 and before extending emergency procurements pursuant to Section 20-30.

b) Notice of hearings shall be published in the Bulletin at least 14 days prior to the date of the public hearing.

All notices shall include the date, time and location of the public hearing.
Notices for sole source procurements shall include the sole source procurement justification form, a description of the item to be procured, and the intended sole source contractor.
Notices for extending emergency procurements shall include the CPO's written justification for the emergency contract and the name of the contractor.

c) A copy of the notice and all documents provided at the hearing shall be included in the subsequent issue of the Bulletin.

d) Any person may present testimony at the hearings.

e) The hearings shall be held in the offices of the Comptroller or at some other convenient location readily accessible to members of the public.

f) The CPO or his or her designee shall preside over the hearings and shall issue a written determination within 14 calendar days after the conclusion of the hearing.

g) Copies of all statements and exhibits introduced at the hearings, written determination of the CPO or designee, and a summary of the proceedings at the hearings shall be included in the appropriate procurement files.

History

Source: Amended at 42 Ill. Reg. 6682, effective March 30, 2018

44 Ill. Adm. Code 1120.6010 Supply Management and Dispositions

a) Inventory Responsibility.

The IOC shall maintain accountability over tangible personal property and other supplies under its control subject to the requirements of the State Property Control Act and rules implementing that Act.

b) Supply Management.

The IOC shall order supplies on a schedule and in quantities so as to maintain no more than a 12 month supply in inventory. Supplies shall be ordered so as to maintain the minimum inventory commensurate with ability to meet IOC needs. This 12-month inventory restriction does not apply when a greater quantity is needed to meet minimum order quantities.

c) Annual Inventory.

All IOC inventory storage areas shall be inventoried at least annually.

d) Report of Inventory.

The Comptroller's Director of Administrative Services shall be notified periodically of all supplies in excess of 12 months supply.

44 Ill. Adm. Code 1120.6500 General

In an effort to make the procurement process more efficient, State and other governmental units may agree to utilize each others procurement contracts. Agreements between State agencies with procurement authority and other governmental units with taxing authority are governed by this Part and the Governmental Joint Purchasing Act [30 ILCS 525].

44 Ill. Adm. Code 1120.6510 State Use of Other Contracts

The IOC may utilize procurement contracts established by other authorized State agencies or units of government:

a) if:

the contract was established by competitive sealed bid or competitive sealed proposal pursuant to the Code; or
competitive sealed bid or competitive sealed proposals are not required by the Code;

b) if the price is reasonable;

c) if an existing contract of the IOC would not be violated;

d) if allowed by the vendor;

e) if necessary State contract terms can be added; and

f) if State legal requirements are otherwise met.

44 Ill. Adm. Code 1120.6520 No Agency Relationship

In any joint procurement situation, the agency establishing the contract does not become the procurement agent for the other.

44 Ill. Adm. Code 1120.7000 Severability

If any provision of this Part or any application thereof is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without such invalid provision or application.

44 Ill. Adm. Code 1120.7010 Government Furnished Property

If the IOC provides any property to the vendor in furtherance of the contract, such property shall remain the property of the State but may be consumed by the vendor if necessary to complete the contract. Vendor will issue a receipt for the property and will be responsible for its safekeeping and return of unused property to the State.

44 Ill. Adm. Code 1120.7015 Inspections

a) Inspection of Plant or Site

The IOC may enter a contractor's or subcontractor's plant or place of business to:

inspect supplies or services for acceptance by the State pursuant to the terms of a contract;
audit the books and records of any contractor or subcontractor pursuant to Section 1120.7020;
investigate an action to debar or suspend a person from consideration for award of contracts pursuant to the Code;
determine whether the standards of responsibility have been met or are capable of being met;
determine if the contract is being performed in accordance with its terms; and
accomplish any other purpose permitted by law.

b) Inspection and Testing of Supplies and Services

Solicitation and Contractual Provisions. State contracts may provide that the IOC may inspect supplies and services at the contractor's or subcontractor's facility and perform tests to determine whether they conform to solicitation requirements, or, after award, to contract requirements, and are therefore acceptable. Inspections and tests shall be conducted in accordance with the terms of the solicitation and contract.
Procedures for Trial Use and Testing. The CPO may establish operational procedures governing the testing and trial use of equipment, material and other supplies, and the application of resulting information and data to specifications or procurements.

c) Conduct of Inspections

Inspectors. Inspections or tests shall be performed so as not to unduly delay the work of the contractor or subcontractor. No inspector may change any provision of the specifications or the contract without the written authorization of the CPO. The presence or absence of an inspector shall not relieve the contractor or subcontractor from any requirements of the contract.
Location. When an inspection is made in the plant or place of business of a contractor or subcontractor, the contractor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.
Time. Inspection or testing of supplies and services performed at the plant or place of business of any contractor or subcontractor shall be performed at reasonable times.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.7020 Records and Audits

a) Retention of Books and Records.

Books and records that relate to performance of an IOC contract, including subcontracts, and that support amounts charged to the IOC shall be maintained:

by a contractor, for three years from the date of final payment under the prime contract;
by a subcontractor, for at least three years from the date of final payment under the subcontract; and
by a contractor and subcontractor for such longer period of time as is necessary to complete ongoing or announced audits.

b) Contract Audit.

Types of Contracts Audited. The type of contract under which books and records should be audited is that in which price is based on costs or is subject to adjustment based on costs, or that in which auditing would be appropriate to assure satisfactory performance, such as a time and materials contract.
Situations in which an audit may be warranted include but are not limited to when a question arises in connection with:

A) the financial condition, integrity, and reliability of the contractor or subcontractor;

B) any prior audit experience;

C) the adequacy of the contractor's or subcontractor's accounting system;

D) the number or nature of invoices or reimbursement vouchers submitted by the contractor or subcontractor for payment;

E) the use of federal assistance funds;

F) the fluctuation of market prices affecting the contract; or

G) any other situation when the CPO or SPO finds that such an audit is necessary for the protection of the State's best interest.

44 Ill. Adm. Code 1120.7025 Written Determinations

a) Preparation and Execution

When the Code or this Part requires a written determination, the Procurement Officer may delegate its preparation, but the responsibility for and the execution of the determination shall not be delegated.

b) Content

Each written determination shall set out sufficient facts, circumstances and reasoning as will substantiate the specific determination that is made.

c) Obtaining Supporting Information

While the Procurement Officer is responsible for the execution of the written determination, other State personnel, particularly technical personnel, are responsible for furnishing to the Procurement Officer, in an accurate and adequate fashion, the information pertinent to the determination. When requested, the information shall be furnished in writing to the Procurement Officer who shall have the authority to decide the final form and content of the determination and to resolve any questions or conflicts arising with respect to the determination.

d) Forms

The CPO shall prescribe methods and operational procedures to be used in preparing written determinations.

e) Retention

Each written determination shall be filed in the solicitation or contract file to which it applies, shall be retained as part of that file for so long as the file is required to be maintained, and, except as otherwise provided by statute or rule, shall be open to public inspection.

History

Source: Amended at 37 Ill. Reg. 3075, effective March 1, 2013

44 Ill. Adm. Code 1120.7030 No Waiver of Sovereign Immunity

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.

Part 1130 Purchasing Card Program

44 Ill. Adm. Code 1130.10 Statutory Authority

a) This Part establishes rules necessary to implement Section 13.3 of the State Finance Act [30 ILCS 105/13.3] relating to the use of purchasing cards by State agencies.

b) This Part applies to all State agencies that seek to use a purchasing card under the authority of Section 13.3 of the Act.

44 Ill. Adm. Code 1130.20 Definitions

The following definitions shall be used in interpreting this Part:

"Act" means the State Finance Act [30 ILCS 105].

"Authorized purchase" means an acquisition where a participating agency authorizes an employee as a purchasing card user within cardholder setup limits and restrictions specified by the participating agency; where the merchant authorizes the transaction in accordance with established payment card association rules and regulations; and the participating agency receives the goods. In no event shall a cardholder's acquisition of services or travel expenses be an authorized purchase.

"Cardholder" means an individual designated by a participating agency in accordance with procedures established by CMS to be a purchasing card recipient and make authorized purchases.

"CMS" means the Department of Central Management Services.

"Goods" means all tangible personal property.

"Participating agency" means a State agency that is enrolled in the purchasing card program pursuant to procedures established by CMS.

"Purchasing card program" means the program for State agencies' use of purchasing cards established under this Part.

"Services" means the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance.

"Single purchasing card transaction" means an individual occurrence of using a purchasing card issued under this Part to purchase any amount of goods.

"State agency" means any department, officer, authority, public corporation, quasi-corporation, commission, board, institution, State college or university, or other public agency created by the State, other than units of local government and school districts.

"Travel expense" means an expense incident to official travel.

44 Ill. Adm. Code 1130.30 Contract Evaluation and Award

a) CMS shall solicit purchasing card vendors to provide for purchasing cards for use as authorized by this Part.

b) CMS and the Comptroller shall jointly evaluate and make recommendations in regard to proposals submitted by purchasing card vendors in response to CMS' solicitation under this Section. CMS' and the Comptroller's joint considerations shall include but not be limited to:

the purchasing card vendor's ability to provide both detailed transaction data as may be needed for State accounting purposes and overall purchase card program information as may be required by State agencies;
the purchasing card vendor's ability to electronically interface detailed transaction data with the participating agencies' accounting and billing systems;
the availability of discounts and rebates that the purchasing card vendor will provide the State;
the cost to the State for the products and services provided by the purchasing card vendor;
the impact of the purchasing card program on existing procurement practices and systems;
the payment terms and late payment penalties the purchasing card vendor will require;
the purchasing card vendor's ability to provide card limits and restrictions as may be required by participating agencies;
the purchasing card vendor's proposed program for liability of unauthorized card use;
the purchasing card vendor's proposed agency enrollment, implementation and account maintenance processes; and
the location and number of suppliers that accept the purchasing card.

c) As recommended by CMS and the Comptroller as a result of their joint evaluation process, CMS shall award contracts to purchasing card vendors to provide for purchasing cards for use as authorized by this Part.

44 Ill. Adm. Code 1130.40 Program Participation

a) CMS will establish procedures governing:

the enrollment and responsibilities of State agencies participating in the purchasing card program under this Part; and
participating agencies' issuance of purchasing cards to cardholders under this Part.

b) Procedures adopted by CMS shall require each potential cardholder, prior to card issuance, to certify that:

the cardholder shall use the purchasing card for authorized purchases only; and
the cardholder shall accept liability for all unauthorized purchases.

44 Ill. Adm. Code 1130.50 Duties of State Agencies

a) State agencies may participate in the purchasing card program in accordance with this Part and the procedures established by CMS.

b) A participating agency may use purchasing cards to pay for purchases of goods in accordance with this Part. A single purchasing card transaction shall not be greater than $500. Purchasing cards shall not be used for the procurement of services or travel expenses.

c) Each participating agency shall process payments to the purchasing card vendor as provided in the uniform accounting system developed by the Comptroller.

d) Each participating agency shall develop and implement internal standards and procedures that will permit full compliance with the provisions of this Part, the Comptroller's uniform accounting system, and procedures established by CMS under this Part.

e) Each participating agency shall maintain detailed documentation regarding its purchasing card transactions in accordance with the State Records Act [5 ILCS 160].

44 Ill. Adm. Code 1130.60 Compliance Audit

The Internal Auditor of each participating agency shall annually perform an audit of the purchasing card program as implemented by the participating agency.

44 Ill. Adm. Code 1130.70 Compliance Certification

a) The Comptroller shall establish standards for an annual certification to be provided to the Comptroller and the Auditor General by the Agency Head of each participating agency prior to use of purchasing cards by the participating agency cardholders and annually thereafter. The certification shall establish that:

sufficient internal controls exist to insure appropriate use of the purchasing card by the participating agency's cardholders;
proper segregation of duties are in place regarding the reporting and accounting of purchasing cards;
the participating agency maintains an adequate pre-audit and post-audit function; and
the participating agency has appropriately addressed any findings identified by an internal or external audit relating to the participating agency's purchasing card program.

b) The Comptroller shall refuse to issue payment of purchasing card transactions made by cardholders of a participating agency unless a current certification by the participating agency's Agency Head, as required by subsection (a) of this Section, is on file with the Comptroller.

c) The Comptroller may inspect and audit the records and supporting documentation that the participating agencies maintain and that relate to the purchasing card program established under this Part.

Chapter XV Department of Natural Resources

Part 1150 Selection of Contractors and Consultants for Abandoned Mined Lands Reclamation Projects

44 Ill. Adm. Code 1150.10 Purpose

The Abandoned Mined Lands and Water Reclamation Act ("Act") [20 ILCS 1920] provides that the Illinois Department of Natural Resources shall administer a program for the reclamation of abandoned lands and waters in accordance with the Act. This Part describes standard procedures for the Department's Office of Mines and Minerals, Division of Abandoned Mined Lands Reclamation, for advertising, bidding and awarding contracts for construction on abandoned mined lands ("AML") reclamation projects. This Part also prescribes standard procedures for obtaining the necessary outside professional services as needed in the administration of the AML program. The purpose is to prescribe procedures which will implement the AML program in a way which satisfies the requirements of the various State of Illinois purchasing laws, as well as federal grant requirements for funding pursuant to the Surface Mining Control and Reclamation Act of 1977, as amended (30 USC 1201 et seq.).

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.20 Scope

The Rules in this Part are non-conflicting supplements to the Standard Procurement Rules (44 Ill. Adm. Code 1), promulgated by the Department of Central Management Services, and all activities and interpretations shall be performed to give effect to both sets of rules. Procurement of other goods and services shall be in accordance with the Standard Procurement Rules promulgated by the Department of Central Management Services.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.30 Applicability

a) General

This Part applies to all contracts for reclamation construction and professional services required by the Division of Abandoned Mined Lands Reclamation.

b) Standard Construction Contracts

Subpart B applies to the advertising, bidding and awarding of contracts for construction on reclamation projects that have been planned and designed in the normal course of the AML program.

c) Emergency Construction Contracts

Subpart C applies to construction contracts that are necessary to abate emergency conditions which involve a danger to public health and safety and that cannot await abatement under normal program procedures.

d) Professional Services

Subpart D applies to the selection of Consultants to provide professional services covered by the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.40 Severability

If any provision, clause, or phrase of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or application of this Part and to this end the provisions of this Part are severable.

44 Ill. Adm. Code 1150.50 Incorporation by Reference

No incorporation by reference in this Part pursuant to Section 5-75 of the Illinois Administrative Procedure Act [5 ILCS 100/5-75] contains any later amendment or edition.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.100 Definition of Terms

Wherever in this Part the following terms or pronouns in place of them are used, words importing the masculine may be applied to females, and the intent and meaning shall be interpreted as follows:

"Advertisement" − The public announcement, as required by law, inviting bids for work to be performed or materials to be furnished.

"AML" − Abandoned Mined Lands; of or pertaining to the Abandoned Mined Lands Reclamation program.

"AVS" or "Applicant Violator System" − The computer system maintained by OSM, in accordance with 30 CFR 773, to identify ownership or control links involving coal mining permit applicants, permittees, and persons cited in violation notices.

"Award" − The decision of the Department in the form of a letter of intent to accept the proposal of the lowest responsive and responsible bidder for the work, subject to the execution and approval of a satisfactory contract and bond to secure the performance as required by this Part, and to such other conditions as may be specified. A responsible bidder is a bidder who meets the standards set forth in 44 Ill. Adm. Code 1: Subpart H.

"Bid" − a Contractor's proposal.

"Bidder" − Any individual, firm, partnership or corporation submitting a proposal for the work contemplated, acting directly or through a authorized representative.

"Calendar Day" − Every day shown on the calendar.

"Consultant" − Any individual, sole proprietorship, firm, partnership, corporation, association, or other legal entity engaged in providing professional services in the practice of architecture, engineering or land surveying as permitted by law.

"Contract" − The written Agreement between the Department and the Contractor setting forth the obligations of the parties to the contract, including, but not limited to, the performance of the work, the furnishing of labor and materials, and the basis of payment. The contract includes the invitation for bids, proposal, letter of award, contract form and contract bond, Specifications, Supplemental Specifications, Special Provisions, general and detailed plans, and any Agreements that are required to complete the construction of the work in an acceptable manner, including authorized extensions thereof, all of which constitute one instrument.

"Contract Bond" − The approved form of security furnished by the Contractor and his/her surety as a guaranty that the contractor will execute the work in accordance with the terms of the contract.

"Contractor" − The individual, firm, partnership or corporation contracting with the Department for performance of prescribed work.

"Department" − The Department of Natural Resources, Office of Mines and Minerals, Division of Abandoned Mined Lands Reclamation, of the State of Illinois, with principal offices of business at Springfield.

"Department of Transportation" − The Department of Transportation of the State of Illinois with principal offices of business at Springfield.

"Equipment" − All machinery and equipment, together with the necessary supplies for upkeep and maintenance, and also tools and apparatus necessary for the proper construction and acceptable completion of the work.

"Invitation for Bids" − The advertisement for proposals for all work or materials on which bids are required. Such advertisement will indicate with reasonable accuracy the quantity and location of the work to be done or the character and quantity of the material to be furnished and the time and place of the opening of proposals.

"Materials" − Any substances specified for use in the construction of the project and its appurtenances.

"OSM" − The Office of Surface Mining, Reclamation and Enforcement, United States Department of the Interior.

"Pay Item" − A specifically described unit of work for which a price is provided in the contract.

"Plans" − The approved plans, profiles, typical cross sections, working drawings and supplemental drawings, or exact reproductions thereof, which show the location, character, dimensions and details of the work to be done.

"Proposal" − The offer of a bidder, on the prescribed form, to perform the work and to furnish the labor and materials at the prices quoted. In Subpart D, "Proposal" means the letter of interest and designated portions of the Consultant's Qualifications Packet submitted to the Department for consideration by the Department in selecting Consultants to provide professional services.

"Proposal Guaranty" − The security furnished with a bid to guarantee that the bidder will enter into the contract if his/her bid is accepted.

"Special Provisions" − Additions and revisions to the Standard and Supplemental Specifications covering conditions peculiar to an individual project.

"Specifications" − The body of directions, provisions and requirements contained in "Standard Specifications for Road and Bridge Construction" adopted by the Department of Transportation, or in any supplement adopted by the Department of Transportation, together with written agreements and all documents of any description made or to be made pertaining to the method or manner of performing and paying for the work, the quantities, or the quality of materials to be furnished under the contract.

"State" − The State of Illinois acting through the Department of Natural Resources, Office of Mines and Minerals, Division of Abandoned Mined Lands Reclamation, or such agency or department of State Government as the Department may designate.

"Structure" − Unless otherwise defined in the Specifications, structures shall comprise all objects constructed of materials other than earth, required by the contract to be built or to be removed.

"Subconsultant" − An individual, firm, partnership, or corporation who, with the written consent of the Department, assumes obligation for performing specified professional services.

"Subcontractor" − An individual, firm, partnership, or corporation who, with the written consent of the Department, assumes obligation for performing specified contract work.

"Supplemental Specifications" − Additions and revisions to the Standard Specifications for Road and Bridge Construction of the Illinois Department of Transportation, as modified and referenced in the proposal and contract.

"Surety" − The corporation, partnership or individual, other than the Contractor, executing the Contract Bond.

"Work" − Work shall mean the furnishing of all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the project and the carrying out of all the duties and obligations imposed by the contract.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.200 Bidding Requirements and Conditions

a) Prequalification of Bidders

Each bidder shall be prequalified by the Department of Transportation and eligible to bid as provided in 44 Ill. Adm. Code 650 and described in Section 102 of the Standard Specifications for Road and Bridge Construction published by the Department of Transportation. Application for prequalification shall be made directly to the Department of Transportation.
The Department shall rely upon any determination and statement by the Department of Transportation that a bidder is not qualified or that the bidder's qualification has been suspended, without additional inquiry or verification. Any appeal, challenge, or dispute by a bidder relating to an adverse determination of the Department of Transportation shall be made to the Department of Transportation.
No error in any determination of a bidder's qualifications made by the Department of Transportation shall invalidate any decision of the Department of Natural Resources.
Independent of any determination by the Department of Transportation, the Department of Natural Resources by and through the Director of the Office of Mines and Minerals may declare a contractor ineligible for reclamation project contracts and suspend that contractor's eligibility for up to one year. The Contractor shall be sent written Notice of the Department's action. The following shall be sufficient grounds for suspension:

A) Material breach of contract.

B) Delivery of materials or performance of services which do not comply with the specifications of the contractor's contract with the Department or any other State agency or department.

C) Failure to perform within the time specified in the contract.

D) Failure to keep offer firm for length of time specified by the bidder in his/her bid.

E) Failure to provide performance bond when required by invitation for Bids.

F) Collusion with other bidders or prospective bidders to restrain competitive bidding.

G) Giving information in an application for inclusion on a bidder's list that is later found to be false or materially misleading.

H) Any substitution of materials, even though of the same quality, without first securing the written consent of the State.

I) Bankruptcy or other evidence of insolvency of the bidder, such as the failure to timely pay suppliers and sub-contractors.

J) Revocation of the Department of Human of Rights Public Contract number.

K) Failure to provide prevailing wages and benefits where required by law (Prevailing Wage Act [820 ILCS 130]).

L) Non-compliance with Equal Employment Opportunity contract provisions.

M) A recommendation from OSM that the contractor is not eligible for an AML contract under 30 CFR 874.16.

In all actions suspending a contractor's eligibility to bid on reclamation project contracts, the Contractor may protest the Department's action by submitting to the Director of the Department a written statement of objection setting forth the facts and circumstances of the action which are alleged to be legally or otherwise objectionable. The written statement of objection must be received by the Director within 14 calendar days after the objectionable action. The Director shall provide the Contractor with a hearing in accordance with procedures set forth in 17 Ill. Adm. Code 2530. Notwithstanding the provisions of Sections 2530.320 - 2530.350 concerning initiation of proceedings by the Department, the Contractor shall initiate the proceedings.

b) Notice to Bidders

Notice to Bidders and advertisement for bids shall be published in the Illinois Procurement Bulletin of the State of Illinois, inviting bids for the construction projects for which competitive bids may be received and which are in any one letting. Advertisements must appear at least once, no less than 14 days before the bid opening. The notice shall specify the date, time and place where bids are due; the date, time and place where the bids will be opened; the place where proposal forms may be obtained; the responsible State purchasing officer; the method of source selection; and information of how to obtain a comprehensive purchase description and any disclosure and contract forms.
The Illinois Procurement Bulletin of the State of Illinois for the Department will be the volumes published by the Department of Transportation.
A notice of all construction projects for which the Department is accepting bids at a Department of Transportation letting shall be published in the Illinois Procurement Bulletin, at least 14 days prior to the time bids are due. The Bulletin is sent to all contractors who have prequalified with the Department of Transportation and to persons paying the established subscription price.

c) Contents of Proposal Forms

Upon request, the Department of Transportation will furnish the prequalified, prospective bidders a proposal form. This form will state the location and description of the contemplated construction and will show the estimate of the various quantities and kinds of work to be performed and/or materials to be furnished, and will have a schedule of items for which unit bid prices are invited. The proposal form will state the time in which the work must be completed, the amount of the proposal guaranty, labor requirements, and the date, time, and place of the opening of proposals. The form will also include Special Provisions and requirements that adapt the Standard Specifications to AML projects and provide for project specific conditions and requirements.
All papers bound with or attached to the proposal form are considered a part thereof and must not be detached or altered when the proposal is submitted.
The plans, specifications and other documents designated in the proposal form, including any addenda officially issued by the Department, will be considered a part of the proposal, whether attached or not.

d) Issuance of Proposal Forms

The Department shall direct the Department of Transportation to refuse to issue a proposal form for any of the following reasons:

Lack of competency and adequate machinery, plant and other equipment, as revealed by the financial statement and experience questionnaires required by the prequalification procedures of the Department of Transportation.
Uncompleted work which, in the judgment of the Department or the Department of Transportation, might hinder or prevent the prompt completion of additional work if awarded.
False information provided in the bidder's "Affidavit of Availability".
Failure to pay, or satisfactorily settle, all bills due for labor and material on former contracts in force at the time of issuance of proposal forms.
Failure to comply with any prequalification procedures of the Department of Transportation.
Default under previous contracts.
Unsatisfactory performance record as shown by past work, judged from the standpoint of workmanship and progress.
When the Contractor is suspended from eligibility to bid at a public letting where the contract is awarded by, or requires approval of, the Department of Transportation.
When any agent, servant or employee of the prospective bidder currently serves as a member, employee or agent of a governmental body that is financially involved in the proposed work.
When any agent, servant or employee of the prospective bidder has participated in the preparation of plans or specifications for the work.

e) Amendment of Proposal Form

At any time prior to the time when proposals are due, the Department may amend the proposal form by deleting or adding items, changing quantities of any item, altering specifications or other elements of the proposal forms. In the event of a change of the proposal form, the Department shall notify all persons who have received proposal forms or have otherwise notified the Department of Transportation of an intention to submit a proposal, and shall, prior to the time proposals are due, provide all such persons with an amended proposal form. Any bidders who have already submitted a proposal shall be allowed to withdraw, resubmit or amend their proposal notwithstanding the provisions of subsection (m) of this Section. In amending a proposal form, the Department shall extend the time when the proposals are due when it determines that additional time will be required to compensate for the amendments.
Unless the changes are so substantial that the initial invitation for bids no longer reflects an accurate estimate of the quantity of the work to be done or the character and quantity of the material to be furnished, no new invitation or advertisement shall be required.

f) Interpretation of Quantities in Bid Schedule

The quantities appearing in the bid schedule are approximate and are prepared for the comparison of bids. Payment to the Contractor will be made only for actual quantities of work performed and accepted or materials furnished in accordance with the contract, unless bid quantities are accepted by both the Department and Contractor. The scheduled quantities of work to be done and materials to be furnished may each be increased, decreased, or omitted as provided in this Section.

g) Examination of Plans, Specifications, Special Provisions and Site of Work

The prospective bidder shall, before submitting a bid, carefully examine the provisions of the contract. The bidder shall inspect in detail the site of the proposed work, investigate and become familiar with all the local conditions affecting the contract and fully acquaint itself with the detailed requirements of construction. Submission of a bid shall be a conclusive assurance and warranty that the bidder has made these examinations and that the bidder understands all requirements for the performance of the work. If his/her bid is accepted, the bidder will be responsible for all errors in the proposal resulting from his/her failure or neglect to comply with this subsection (g)(1). The Department will, in no case, be responsible for any costs, expenses, losses or change in anticipated profits resulting from such failure or neglect of the bidder to make these examinations.
The bidder shall take no advantage of any error or omission in the proposal and advertised contract. Any prospective bidder who desires an explanation or interpretation of the plans, specifications or any of the contract documents shall request an explanation or interpretation in writing from the Supervisor of Project Management in sufficient time to allow a written reply by the Department that can reach all prospective bidders before submission of their bids. Any reply given a prospective bidder concerning any of the contract documents, plans, and specifications will be furnished to all prospective bidders in the form determined by the Department including, but not limited to, an addendum, if the information is deemed by the Department to be necessary in submitting bids or if the Department concludes that the information would aid competition. Oral explanations, interpretations, or instructions given before the submission of bids, unless at a prebid conference, will not be binding on the Department.

h) Preparation of the Proposal

Bidders shall submit their proposals on the form furnished by the Department of Transportation. The proposal shall be executed, and bids shall be made for all items indicated in the proposal form, except that when alternative bids are asked a bid on more than one alternate for each item is not required, unless otherwise provided. The bidder shall indicate, in figures, a unit price for each of the separate items called for in the proposal form; the bidder shall show the products of the respective quantities and unit prices in the column provided for that purpose, and the gross sum shown in the place indicated in the proposal form shall be the summation of those products. All writing shall be with ink or typewriter, except the signature of the bidder, which shall be written in ink.
If the proposal is made by an individual, that individual's name and business address shall be shown. If made by a firm or partnership, the name and business address of each member of the firm or partnership shall be shown. If made by a corporation, the proposal shall show the names, titles, and business addresses of the president, secretary, and treasurer, and the seal of the corporation shall be affixed and attested by the secretary.

i) Combination Bids

A combination bid is a total bid received on two or more proposals. No combination bids other than those specifically set up by the Department will be considered. Separate proposal forms will be issued for each project in the combination so that bids may be submitted either on the combination or on separate units of the combination. The Department reserves the right to make awards on combination bids or separate bids to the best advantage of the Department.
If a combination bid is submitted on 2 or more proposals, separate proposals on each individual contract shall also be submitted, and unless separate proposals are so submitted, the combination bid will not be considered. If the bidder desires to submit a combination bid, the bidder shall state, in the place provided in the proposal form, the amount of the combination bid for the entire combination.
If a combination bid is submitted on any stipulated combination, and errors are found to exist in computing the gross sum bid on any one or more of the individual proposals, corrections shall be made by the Department and the amount of the combination bid shall be corrected so that it will be in the same proportion to the sum of the corrected gross sum bid as the combination bid submitted was to the sum of the gross sum bid submitted. The following provisions shall govern combination bidding:

A) A combination bid which is submitted for 2 or more proposals and awarded on that basis shall have the bid prorated against each proposal in proportion to the bid submitted for each proposal.

B) Separate contracts shall be executed for each individual proposal included in the combination.

C) The completion date for all contracts awarded on a combination bid shall be the latest completion date designated in any one or more of the contracts included in the combination, unless otherwise provided in the contracts. The working days for all contracts awarded on a combination bid shall be the largest number of working days designated in any one or more of the contracts included in the combination, unless otherwise provided in the contracts.

D) An extension of time for any one or more contracts awarded on a combination bid shall automatically extend all contracts awarded on the combination.

E) In the event the Contractor fails to complete any one or all of the contracts on the combination bid by the contract completion date plus any authorized extension, or the contract working days plus any authorized extension, the liquidated damages shall be determined from the schedule of deductions for each day of overrun in contract time as provided in the contract, based on the combination bid total, and shall be computed on the combination and prorated against the 2 or more individual contracts based on the dollar value of each contract.

F) The plans and Special Provisions for each separate contract shall be construed separately for all requirements, except as described in subsections (a) through (e) above.

j) Rejection of Proposals

The Department reserves the right to reject proposals where the bidder has failed to meet the prequalification requirements of the Department of Transportation, or for any of the following reasons:

More than one proposal for the same work from an individual, firm, partnership, or corporation under the same or different names.
Evidence of collusion among bidders.
Unbalanced proposals in which the bid prices for some items are obviously out of proportion to the bid prices for other items.
If the proposal does not contain a unit price for each pay item listed, except in the case of authorized alternate pay items or lump sum pay items.
If the proposal form is other than that furnished by the Department of Transportation; or if the form is altered or any part thereof is detached.
If there are omissions, erasures, alterations, unauthorized additions, conditional or alternate bids, or irregularities of any kind which may tend to make the proposal incomplete, indefinite or ambiguous.
If the bidder adds any provisions reserving the right to accept or reject an award, or to enter into a contract pursuant to an award.
If the proposal is not accompanied by the proper proposal guaranty.
If the proposal is prepared with other than ink or typewriter.
If the certifications contained in the proposal form are not completely executed.

k) Proposal Guaranty

Each proposal shall be accompanied by either a bid bond on the Department form contained in the proposal, executed by a corporate surety company satisfactory to the Department, pursuant to 44 Ill. Adm. Code 675.240, or by a bank cashier's check or a properly certified check for not less than five percent of the amount bid, or for the amount specified in the following schedule:

Amount of Bid

Proposal Guarantee

Up to

5,000

150

$ 5,000 to

10,000

300

10,000 to

50,000

3,000

50,000 to

100,000

3,000

100,000 to

150,000

5,000

150,000 to

250,000

7,500

250,000 to

500,000

12,500

500,000 to

1,000,000

25,000

1,000,000 to

1,500,000

50,000

1,500,000 to

2,000,000

75,000

2,000,000 to

3,000,000

100,000

3,000,000 to

5,000,000

150,000

5,000,000 to

7,500,000

250,000

7,500,000 to

10,000,000

400,000

10,000,000 to

15,000,000

500,000

15,000,000 to

20,000,000

600,000

20,000,000 to

25,000,000

700,000

25,000,000 to

30,000,000

800,000

30,000,000 to

35,000,000

900,000

OVER

35,000,000

1,000,000

In the event that one proposal guaranty check is intended to cover two or more proposals, the amount must be equal to the sum of the proposal guaranties which would be required for each individual proposal.
If a combination bid is submitted, the proposal guaranties which accompany the individual proposals making up the combination will be considered as also covering the combination bid.
Bank cashier's checks or properly certified checks accompanying proposals shall be made payable to the Treasurer, State of Illinois.

l) Delivery of Proposals

Each proposal should be submitted in a special envelope furnished by the Department of Transportation. The blank spaces on the envelope shall be filled in correctly to clearly indicate its contents. When an envelope other than the special one furnished by the Department of Transportation is used, it shall be of the same general size and shape and be similarly marked to clearly indicate its contents. When sent by mail, the sealed proposal shall be addressed to the Department of Transportation at the address and in care of the official in whose office the bids are to be received. All proposals shall be filed prior to the time and at the place specified in the Notice to Bidders. Proposals received after the time for opening of bids will be returned to the bidder unopened.

m) Withdrawal of Proposals

Permission will be given a bidder to withdraw a proposal if the bidder makes his/her request in writing before the time for opening proposals.

n) Public Opening of Proposals

Proposals will be opened and read publicly at the time and place specified in the Notice to Bidders. Bidders, their authorized agents, and other interested parties are invited to be present.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.300 Award and Execution of Contract

a) Consideration of Proposals

After the proposals are opened and read, they will be compared on the basis of the summation of the products of the quantities shown in the bid schedule by the unit bid prices. In the event of a discrepancy between unit bid prices and extensions, the unit bid price shall govern. In awarding contracts, the Department will, in addition to considering the amounts stated in the proposals, take into consideration the responsibility of the various bidders as determined by the Department of Transportation under Section 1150.200(a), and from other investigations which the Department shall make when it has reason to believe that any of the conditions found in Sections 1150.200(a)(4) and (j) exist.
The right is reserved to reject any or all proposals, to waive technicalities, or to advertise for new proposals, if, in the judgment of the Department, the best interests of the Department will be served.

b) Award of Contract

The award of contract will be made within 45 calendar days after the opening of proposals to the lowest responsible and qualified bidder whose proposal complies with all the requirements prescribed. The successful bidder will be notified by letter of intent that his/her bid has been accepted, and that, subject to subsections (b)(2) and (3) of this Section, the bidder will be the Contractor.
An approved contract executed by the Department is required before the State is bound. An award may be cancelled by the Department any time prior to execution in order to protect the public interest and integrity of the bidding process or for any other reason if, in the judgment of the Department, the best interest of the Department will be served.
If a contract is not awarded within 45 days after the opening of proposals, a bidder may file a written request with the Department for the withdrawal of his/her bid, and the Department will permit such withdrawal. Provided, however, if the Notice to Bidders specifies a period longer than 45 days after the opening of proposals, to delay the award of contract to coincide with the AML federal grant award, then the time shall be as specified for withdrawal of bids.

c) Notice of Contract Awarded

Notice of each and every contract that is let or awarded shall be published in the next available Illinois Procurement Bulletin.

d) Return of Proposal Guaranty

The proposal guaranty checks of all except the two lowest bidders will be returned promptly after the proposals have been checked, tabulated, and the relation of the proposals established. Proposal guaranty checks of the two lowest bidders will be returned as soon as the contract and contract bond of the successful bidder have been properly executed and approved. Bid bonds will not be returned.
After a period of 3 working days after the date of opening proposals has elapsed, the Department shall permit the two lowest bidders to substitute for the bank cashier's checks or certified checks submitted with their proposals as proposal guaranties, bid bonds on the Department forms executed by corporate surety companies satisfactory to the Department.

e) Applicant Violator System

Under 30 CFR 874.16, every successful bidder for a federally funded AML contract must be eligible under 30 CFR 773.15(b)(1) at the time of contract award to receive a permit or conditional permit to conduct surface coal mining operations. Bidder eligibility must be confirmed by the federal Office of Surface Mining, Reclamation and Enforcement's automated Applicant/Violator System (AVS) for each contract to be awarded.
At the time the successful bidder is notified by letter of intent that his/her bid will be accepted, the Department will provide to the bidder an Ownership/Control ("O/C") information package. The bidder shall completely fill out the forms and return the completed forms to the Department. The Department will forward the completed forms to OSM at the Lexington, Kentucky AVS office for data entry and compliance check.
All subcontractors who will receive 10% or more of the total contact funding will also be required to submit an O/C information package and be subject to the OSM/AVS compliance check, prior to receiving the Department's approval of subcontractor.
Any contract inspector, selected through a bidding process, regardless of the percentage of contract funding, will also be required to submit an O/C information package and be subject to the OSM/AVS compliance check.
The Department shall deny a contract and cancel the award upon OSM's recommendation that the successful bidder is not eligible for an AML contract. The Department shall deny approval of subcontractor upon OSM's recommendation that the subcontractor is not eligible for an AML contract. The Department shall deny an inspection contract upon OSM's recommendation that the contract inspector is not eligible for an AML contract.
Any person denied an AML contract, or participation in an AML funded project, shall appeal the decision and recommendation of OSM directly to OSM. Appeal should be made to establish eligibility for future AML projects. The Department will not delay a project pending appeal. The Department's role in the AVS compliance check process is ministerial and does not involve exercise of independent judgment or review of OSM's decision and recommendation. The Department shall not be responsible for any damages sustained by any person by reason of OSM's determination as to eligibility for AML contracts.
After a Contractor, subcontractor, or contract inspector has once submitted an O/C information package and has been entered into the AVS in connection with an AML project, the Department may, in connection with subsequent projects, provide dated AVS printouts reflecting the information submitted and the current AVS recommendation, along with an AML Contractor O/C Data Certification form. The Contractor, subcontractor, or contract inspector shall complete and submit the certification in place of the O/C information package, in the same manner as provided above.
Any potential AML Contractor, subcontractor or contract inspector may submit O/C information directly to OSM at the Lexington AVS Office, to predetermine eligibility for AML contracts.

f) Requirement of Contract Bond

The Contractor shall furnish the Department a performance and payment bond with good and sufficient sureties in the full amount of the contract as the penal sum. The surety shall be acceptable to the Department, shall waive notice of any changes and extensions of time, and shall submit its bond on the form furnished by the Department.

g) Execution of Contract

The contract shall be executed by the successful bidder and returned, together with the Contract Bond, within 15 days after the contract has been mailed to the bidder.
If the bidder to whom award is made is a corporation organized under the laws of a State other than Illinois, the bidder shall furnish the Department a copy of the corporation's Certificate of Authority to do business in the State of Illinois with the return of the executed contract and bond. Failure to furnish such evidence of a Certificate of Authority within the time required will be considered as just cause for the annulment of the award and the forfeiture of the proposal guaranty to the State, not as a penalty, but in payment of liquidated damages sustained as a result of such failure.

h) Failure to Execute Contract

If the contract is not executed by the Department within 15 days following receipt from the bidder of the properly executed contracts and bonds, the bidder shall have the right to withdraw his/her bid without penalty.
Failure of the successful bidder to execute the contract and file acceptable bonds within 15 days after the contract has been mailed to the bidder shall be just cause for the cancellation of the award and the forfeiture of the proposal guaranty which shall become the property of the Department, not as a penalty, but in liquidation of damages sustained. Award may then be made to the next lowest responsible bidder, or the work may be readvertised considering the time available for readvertisement, the number of bids received and the variance in the amount of the bids received.

i) Termination of Contracts

The Department shall, by written order, terminate the contract or any portion thereof after determining that for reasons beyond the control of the parties, the Contractor is prevented from proceeding with or completing the work as originally contracted for, and that termination would, therefore, be in the public interest. Such reasons for termination may include, but need not be necessarily limited to, Executive Orders of the President relating to prosecution of war or national defense, national emergency which creates a serious shortage of materials, orders from duly constituted authorities relating to energy conservation, and restraining orders or injunctions obtained by third-party citizen action resulting from national or local environmental protection laws or where the issuance of such order or injunction is primarily caused by acts or omissions of persons or agencies other than the Contractor.
When contracts, or any portion thereof, are definitely terminated or cancelled, and the Contractor released before all items of work included in his/her contract have been completed, payment will be made for the actual number of units of items of work completed at contract unit prices, or as specified in the contract for partially completed items, and no claims for loss of anticipated profits shall be considered. Reimbursement for organization of the work and moving equipment to and from the job will be made when the volume of the work completed is too small to compensate the Contractor for these expenses under the contract unit prices, the intent being that an equitable settlement will be made with the Contractor.
Acceptable materials, obtained by the Contractor for the work, that have been inspected, tested and accepted by the Department, and that are not incorporated in the work shall be purchased from the Contractor at actual costs as shown by receipted bills and actual cost records at such points of delivery as may be designated by the Department, when the Department determines that the materials cannot be returned or resold by the Contractor and the Department or other State agency can make use of such material.
Termination of a contract, as stated above, will not relieve the Contractor or his/her surety of the responsibility of replacing defective work as required by the contract.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.400 Contracts Involving an Expenditure of $30,000 or Less

a) When the contract for construction of a single reclamation project involves an expenditure of $30,000 or less, the Department shall waive the prequalification and bidding requirements of Section 1150.300, where the imposition of such requirements would involve a disproportionate amount of work, time or cost in relation to the size and simplicity of the project.

b) When full bidding procedures will not be utilized, the Department shall contact a minimum of three contractors, in the area in which the project is located, to request bids on the proposed work. The three contractors to be contacted shall be selected based upon proximity to the project, past experience, expertise and available equipment and manpower. The contract shall be awarded to the lowest responsible bidder considering conformity with specifications, availability for work and suitability of equipment.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.500 Emergency Contracting

a) Waiver of Bidding Procedures

When any abandoned mine condition involves a danger to public health and safety and cannot await abatement under normal program procedures, the Department shall waive the prequalification and bidding procedures of Section 1150.300 and the Department shall enter into construction contracts for abatement of the dangerous condition pursuant to the provisions of this Subpart.

b) Use of Prequalified Contractors

The Department shall maintain a list, revised at least annually, of contractors who are prequalified with the Department of Transportation for the type of construction work encountered in AML Emergency reclamation projects. The list shall also include Contractors who have demonstrated responsibility and competence through past performance on AML Emergency reclamation projects. Listed contractors shall be used on all projects unless:

A) the particular construction activity involved is not of a type normally performed by the listed Contractors; or

B) listed contractors cannot be contacted within a reasonable time; or

C) listed contractors are not available to begin work within a reasonable time.

What constitutes a "reasonable time" shall be determined by the severity of the emergency or dangerous condition, and the cost of temporary protective measures.
When listed contractors cannot be used, the Department may use any responsible contractor who appears to be qualified based upon the contractor's reputation, experience, and available equipment.

c) Obtaining Bids

When the full bidding procedures of Section 1150.300 will not be utilized, the Department shall attempt to contact at least three available contractors to request proposals. The three contractors to be contacted shall be selected based upon proximity to the project, past experience, expertise and available equipment and manpower.
When inspection of the site conditions is necessary to understand the detail or complexity of the project, or when requested by a contractor, a pre-bid meeting may be held for interested contractors where the project will be explained and proposal documents distributed. The pre-bid meeting shall be held at the project site whenever possible.
Interested contractors shall submit their proposals on the provided bid documents.

d) Contents of Proposal Documents

When full bidding procedures will not be utilized, the proposal documents will include:

A) The unsigned agreement, and all attachments thereto,

B) Plans, specifications, and any supplemental specifications, and

C) The itemized bid form to be filled out by the Contractor.

The itemized bid form shall become the Contractor's proposal upon completion and execution by the Contractor.

e) Award and Execution of Contract

The contract shall be awarded to the lowest responsible bidder considering conformity with specifications, availability for work and suitability of equipment.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.600 Pre-Bidding Emergency Work

a) Prequalification of Contractors

When there exists a history of emergency events of a similar nature in a particular area, with a probability of continuing emergency events in that area, the Department may elect to pre-bid certain special items of construction and exploratory work, including, but not limited to:

A) exploratory drilling,

B) haulage of fill material, and

C) structural support work.

Only contractors or consultants who are prequalified with the Department of Transportation for the type of work involved, as set forth in Section 1150.200, or as provided in Section 1150.500(b), will be eligible to pre-bid for emergency work.

b) Contracts for Pre-Bid Work

Items of work which are to be pre-bid shall be estimated as to labor, materials, equipment and incidentals required on a typical emergency project, and frequency of projects in a designated geographical area in a given time period.
Bids shall be an offer to perform the work, according to specifications, for a specific cost per unit of work performed.
Contracts for pre-bid work shall be bid, awarded and governed in accordance with the provisions of Subpart B.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.700 Applicability

This Subpart is applicable to all architectural, engineering, or land surveying professional services provided to the Department pursuant to contract. This Subpart is limited in application to professional services which are covered by the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535]. Related services that may be legally performed by persons not required to be licensed under the Illinois Architecture Practice Act of 1989 [225 ILCS 305], the Professional Engineering Practice Act of 1989 [225 ILCS 325], the Structural Engineering Licensing Act of 1989 [225 ILCS 340], or the Illinois Professional Land Surveyor Act of 1989 [225 ILCS 330] are not covered by this Subpart.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.800 Prequalification

All architectural, engineering, or land surveying Consultants desiring to provide service to the Department in connection with the AML program, whether as prime Consultants or subconsultants, must be prequalified by the Department of Transportation for the categories of service identified within each project description.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.900 Subcontracting

a) Professional Services Consultants may subcontract no more than 50 percent of the project work.

b) The Professional Services contract shall include the names and addresses of all subconsultants and the anticipated amount of money which they will receive pursuant to the contract [30 ILCS 505/9.04].

c) If at any time a Professional Services Consultant who had not intended to utilize the service of a subconsultant decides to utilize a subconsultant, the Department and the Consultant shall file an amendment to the original contract with the Comptroller stating the names and addresses of all subconsultants and the anticipated amount of money which they will receive pursuant to the original contract [30 ILCS 505/9.04].

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.1000 Requests for Proposals

a) Whenever an AML project requiring architectural, engineering, or land surveying services from outside the Department's professional staff is proposed, the Department shall provide no less than a 14 day advance notice published in the Illinois Procurement Bulletin setting forth the project(s) and services to be procured. The notice shall constitute a Request for Proposals and shall include a description of each project and shall state the time and place for interested Consultants to submit a letter of interest and designated portions of the Consultant's Qualifications Packet.

b) Proposals received after the date and time specified in the Request for Proposals shall be returned unopened.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.1100 Evaluation Procedure

a) A selection committee, consisting of the Director of the Office of Mines and Minerals, the Manager of the AML Reclamation Division, and the Supervisor of the Project Management Section, or their designees, shall select firms to provide architectural, engineering, and land surveying services on AML reclamation projects. The Committee shall evaluate the Proposals, taking into consideration the following qualification factors:

Ability of professional personnel.
Past record and experience on AML projects and projects with similar professional disciplinary requirements.
Performance data on file.
Willingness to meet time requirements.
Location of the Consultant's office in relation to the project site and the Department's AML office that will be managing the project.
Workload of the Consultant.
Any other qualifications based factors as the Department may determine in writing are applicable on a project specific basis.

b) The Committee shall assign AML technical staff, having knowledge of the scope of work requirements, to provide preliminary technical review as necessary and appropriate to assure that all project considerations are taken into account.

c) The Committee shall not seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation prior to selecting a firm for negotiation.

d) The Committee may conduct discussions with and require public presentations by Consultants deemed to be the most qualified regarding their qualifications, approach to the project and ability to furnish the required services.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.1200 Selection Procedure

a) On the basis of evaluations, discussions and any presentations, the Committee shall select no less than three Consultants that it determines to be qualified to provide services for the project and rank them in order of qualifications to provide those services. The Consultant ranked most preferred shall then be contacted in order to negotiate a contract for a fair and reasonable compensation.

b) If fewer than 3 Consultants submit letters of interest and the Committee determines that one or both of those firms are so qualified, the Department may proceed to negotiate a contract as provided in Section 1300 of this Part.

c) The decision of the Department shall be final and binding.

d) Notice of Contract Awarded

Notice of each and every contract that is awarded shall be published in the next available Illinois Procurement Bulletin.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.1300 Contract Negotiations

a) The Department shall prepare a written description of the scope of the proposed services, entitled "Scope of Work", to be used as a basis for negotiations and shall negotiate a contract with the highest ranked qualified Consultant at a compensation that the Department determines in writing to be fair and reasonable. In making this decision, the Department shall take into account the estimated value, scope, complexity, and professional nature of the services to be rendered.

b) If the Department is unable to negotiate a satisfactory contract with the Consultant that is most preferred, negotiations with that Consultant will be terminated. The Department shall then begin negotiations with the next ranked Consultant. If the Department is unable to negotiate a satisfactory contract with that Consultant, negotiations with that Consultant shall be terminated. The Department shall then begin negotiations with the next ranked Consultant.

c) If the Department is unable to negotiate a satisfactory contract with any of the selected Consultants, then the Department shall re-evaluate the architectural, engineering, or land surveying services requested, including the estimated value, scope, complexity, and fee requirements. The Department shall then compile a second list of not less than three qualified Consultants and proceed in accordance with the provisions of this Subpart.

d) A Consultant negotiating a contract with the Department shall negotiate any approved subcontracts for architectural, engineering, and land surveying services at compensation that the Consultant determines in writing to be fair and reasonable based upon a written description of the proposed services of the subconsultant.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.1325 Exemptions

a) Small Contracts

The provisions of Sections 1150.1000, 1150.1100, and 1150.1200 of this Part do not apply to architectural, engineering, and land surveying contracts of less than $25,000.

b) The provisions of Sections 1150.1000, 1150.1100, and 1150.1200 of this Part do not apply to the procurement of architectural, engineering and land surveying services by the Department:

when the Department determines in writing that it is in the best interests of the State to proceed with the immediate selection of a firm; or
in emergencies when immediate services are necessary to protect the public health, safety and general welfare from the adverse effects of mining.

History

Source: Added at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.1350 Firm Performance Evaluations

The Department shall evaluate the performance of each Consultant upon completion of a contract. That evaluation shall be made available to the Consultant upon request, who may submit a written response, with the evaluation and response retained solely by the State. The evaluation and response shall not be made available to any other person or firm and is exempt from disclosure under the Freedom of Information Act [5 ILCS 140].

History

Source: Added at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.1400 Complaint Procedure

A complaint regarding any decision rendered by or action taken by the Department pursuant to this Part may be filed with the Department by submitting a written statement setting forth all the facts and circumstances together with the basis for making such complaint and specifically how such decision or action is alleged to be in contradiction of this Part. Upon receipt of a complaint, the Department will determine whether, in the decision or action complained of, the Department or Staff has acted in accordance with this Part and advise the person submitting the written statement as to this determination and as to what additional action, if any, the Department will take. Provided, however, that any such complaint must be filed within 14 days from the time the person complaining becomes aware of the decision or the action is announced to the public, whichever occurs first.

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

44 Ill. Adm. Code 1150.1500 Equal Employment Opportunity; Nondiscrimination; Affirmative Action

History

Source: Amended at 22 Ill. Reg. 15581, effective August 17, 1998

Chapter XX Attorney General

Part 1300 Attorney General's Procurement

44 Ill. Adm. Code 1300.01 Title

This Part may be cited as the Attorney General's Procurement Rules.

44 Ill. Adm. Code 1300.05 Policy

All procurements for the Office of the Attorney General (OAG) shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with law, this Part and other applicable rules.

44 Ill. Adm. Code 1300.08 Illinois Procurement Code

Articles 1, 15, 20, 25, 30, 33, 35, 40, 45, 50 and 53 of the Illinois Procurement Code [30 ILCS 500/Arts. 1, 15, 20, 25, 30, 33, 35, 40, 45, 50 and 53] (the Code) will be referenced herein as though applicable to the OAG, and needs shall be procured in a manner substantially in accordance with those provisions of the Code, except to the extent otherwise provided in this Part. For purposes of this Part, any reference in the Code or this Part to the Chief Procurement Officer (CPO) means the employee designated by the Attorney General to serve in that capacity. The Attorney General may appoint one or more Purchasing Officers.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.10 Application

a) The Code and this Part apply to those procurements for which bidders, offerors, potential contractors or contractors were first solicited on or after July 1, 1998.

b) Procurements for which bidders, offerors, potential contractors or contractors were first solicited on or before June 30, 1998, shall be conducted pursuant to legal requirements in effect at the time of the solicitation. The terms and conditions and the rights and obligations under contracts resulting from these procurements shall not be impaired.

History

Source: Amended at 40 Ill. Reg. 3401, effective February 11, 2016

44 Ill. Adm. Code 1300.15 Definitions of Terms Used in This Part

As used throughout this Part, terms defined in the Illinois Procurement Code shall have the same meaning as in the Code and as further defined in this Section, and each term listed in this Section shall have the meaning set forth in this Section unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in that Section.

"Amendment" – A written unilateral or bilateral modification to a contract term, as permitted by the original contract. These modifications shall alter the performance and completion of the contract, including but not limited to such matters as extra work, increases or decreases in quantities of goods not included within the scope of the original contract, and increases or decreases in the cost of the contract or the time for completion of the contract.

"Award" – The selection of a vendor for a contract.

"Bid" − The response submitted by a bidder in a competitive sealed bidding process, in response to an Invitation for Bids, or to a multi-step sealed bidding process [30 ILCS 500/1-15.01].

"Bidder" − Any person, other than an individual acting as a sole proprietor, who submits a bid. The terms "bidder" and "offeror" are used interchangeably for purposes of this Part.

"Bidder or Offeror Authorized to Transact Business or Conduct Affairs in Illinois" or "Qualified Bidder" – A person, other than an individual acting as a sole proprietor, that is a legal entity authorized to transact business or conduct affairs in Illinois as evidenced by its registration with the Secretary of State Department of Business Services.

"Brand Name or Equal Specification" − A specification that uses one or more manufacturer's names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet State requirements, and that allows the submission of equivalent products.

"Brand Name Specification" − A specification limited to one or more items by manufacturers' names or catalogue numbers.

"Bulletin" or "BidBuy" – The Illinois Procurement Bulletin, which can be found at https://bidbuy.illinois.gov/bso.

"Change Order" – A change order shall have the same meaning as an "amendment".

"Code" – The Illinois Procurement Code [30 ILCS 500].

"Concession" – The right or a lease to engage in a certain activity for profit on the lessor's premises (e.g., a refreshment or parking concession).

"Consulting Services" – Services provided by a business or person as an independent contractor to advise and assist the OAG in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of the OAG. The services may or may not rise to the level of professional and artistic as defined in the Code and this Part.

"Contract" − A contract may be in written or oral form. The term contract as used in the Code and this Part does not include: goods or services the terms governing which are established by tariff of the Illinois Commerce Commission or the Federal Communications Commission, bonds issued by or on behalf of any State agency, or contracts, other than for "concessions", that the State agency signs, but has no financial obligation to the other parties.

"Contractor" or "Vendor" – A person or entity having a contract with the OAG. The terms "contractor" and "vendor" are used interchangeably for purposes of the Code and this Part.

"Day" − Calendar day. In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a State holiday, in which event the period shall run to the end of the next business day.

"DCMS" or "CMS" − The Department of Central Management Services.

"Items" – Anything that may be procured under the Code or this Part.

"Invitation for Bids" or "IFB" – the process by which a purchasing agent requests information from bidders, including all documents, whether attached or incorporated by reference, used for soliciting bids [30 ILCS 500/1-15.45].

"Multi-Year Contract" – A multi-year contract is a contract with a performance term of more than 12 months.

"OAG" − The Office of the Attorney General.

"Offer" – a response submitted by an offeror in a competitive sealed proposal process or in response to a Request for Proposal [30 ILCS 500/1-15.51]. The terms "offer" and "proposal" are used interchangeably for purposes of this Part.

"Offeror" – A person who responds to an Invitation for Bids, Request for Proposals or other form of solicitation. The terms "offeror" and "bidder" are used interchangeably for purposes of this Part.

"Procurement Officer" – The Chief Procurement Officer (CPO) or appropriate Purchasing Officer who conducts a particular procurement, or a designee of either.

"Proposal" − The response to a Request for Proposals. The terms "proposal" and "offer" are used interchangeably for purposes of this Part.

"Purchase of Care" − Purchase of care means a contract with a person for the furnishing of medical, educational, psychiatric, vocational, rehabilitative, social, or human services directly to a recipient of a State aid program. [30 ILCS 500/1-15.68] Services provided to a recipient include those that are a necessary adjunct to the provision of the State aid program services (e.g., obtaining intake information prior to commencement of medical treatment). Services provided to an applicant for a State aid program necessary to determine eligibility for the program are included within this definition.

"Qualified Products List" − An approved list of supplies, services, or construction items described by model or catalogue numbers that, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.

"Renewal" – An extension of an original contract with materially identical terms to the original contract.

"Request for Information" or "RFI" – The process by which the OAG requests information from offerors for OAG contracts for leases of real property or capital improvements.

"Request for Proposals" or "RFP" – The process by which the OAG requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals.

"Responsible Bidder", "Potential Contractor" or "Offeror" – A person who has the capability in all respects to perform fully the contract requirements and the integrity and reliability that will assure good faith performance. A responsible bidder, potential contractor or offeror shall not include a business or other entity that does not exist as a legal entity at the time the bid or proposal was submitted in response to an OAG solicitation. The terms "responsible bidder", "potential contractor" and "offeror" are used interchangeably for purposes of this Part.

"Services" – The furnishing of labor, time or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance [30 ILCS 500/1-15.90], and the financing thereof.

"Solicitation" – An Invitation for Bids, a Request for Proposals or other request to one or more vendors to respond to a procurement need expressed by the OAG.

"Specification" − Any description of the physical, functional, or performance characteristics, or of the nature of supply, service, or construction items. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply, service, or construction item for delivery. Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout this Part.

"Specification for a Common or General Use Item" − A specification that has been developed and approved for repeated use in procurements.

"Subcontract" – A contract between one person and another person who has or is seeking a contract subject to this Part, pursuant to which the subcontractor provides to the contractor some or all of the goods, services, property, remuneration or other forms of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency. A "subcontract" does not include purchases of goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to this Part [30 ILCS 500/1-15.107].

"Subcontractor" – A person or entity that enters into a contractual agreement, for an amount greater than the small purchases limits set by Section 20-20 of the Code (or an amount set by rule pursuant to Section 20-20(c) of the Code) or Section 35-35 of the Code or Section 45 of the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535/45], with a contractor who has or is seeking a contract subject to the Code and this Part, to provide the contractor with some or all of the goods, services, property, remuneration or other forms of consideration that are the contractor's contractual obligations. A person or entity is not a "subcontractor" if that person only provides goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to this Part [30 ILCS 500/1-15.108].

"Unsolicited Offer" – Any offer other than one submitted in response to a solicitation.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.25 Property Rights

Receipt of an Invitation for Bids or other procurement document, or submission of any response thereto or other offer, confers no right to receive an award or contract, nor does it obligate the State in any manner.

44 Ill. Adm. Code 1300.30 Contracts Necessary to Prepare for Anticipated Litigation

a) Contracts necessary to prepare for anticipated litigation, enforcement actions or investigations, including but not limited to the appointment of special assistant attorneys general, contracts for court reporter services, and contracts with expert witnesses, are excepted from the application of the Code and this Part, provided that they are approved by Counsel to the Attorney General, or his or her designee, as provided in Section 1-10(b)(7) of the Code. On or after October 1, 2017, the following information concerning all contracts necessary to prepare for anticipated litigation, enforcement actions or investigations shall be reported to the CPO and posted in the appropriate volume of the Bulletin.

name of contractor;
description of supplies or services provided;
total amount of contract;
term of contract;
statement that the contract is excepted from the Code and this Part if that exception is approved by Counsel to the Attorney General, or his or her designee, pursuant to Section 1-10(b)(7) of the Code.

b) The CPO shall submit a report to the General Assembly no later than November 1 of each year that shall include, at a minimum, an annual summary of the information reported to the CPO pursuant to this Section.

History

Source: Amended at 42 Ill. Reg. 13585, effective June 29, 2018

44 Ill. Adm. Code 1300.525 Procurement by Dcms Rules

To the extent practicable and available, the OAG may avail itself of master, schedule or open-ended contracts established by DCMS; items available from the Paper and Printing Warehouse; and DCMS contracts for telecommunications equipment, software and services, paper and envelopes, and vehicles and vehicle services.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.1002 Conduct and Oversight of Procurements

a) Chief Procurement Officer. The Attorney General shall designate a Chief Procurement Officer (CPO) for purposes of the Code and this Part. The CPO may conduct any or all procurements on behalf of the OAG. The CPO shall be a resident of the State of Illinois. The CPO shall:

have at least 5 years of experience in State, local government, or corporate budgeting or procurement activities;
be a certified professional public buyer or certified public purchasing agent; or
have professional experience deemed comparable by the Attorney General.

b) Purchasing Officer. The CPO may, subject to the approval of the Attorney General, appoint one or more Purchasing Officers. Before making the appointment, the CPO shall, among other factors, consider each potential appointee's character and fitness, and understanding of the procurement process. The Purchasing Officer shall exercise procurement authority at the direction of the CPO, and the decisions of a Purchasing Officer are subject to review by the CPO. The Purchasing Officer may enter into contracts for the OAG. The Purchasing Officer shall perform other duties as required by law and may only be removed by the Attorney General for cause. The Purchasing Officer shall be a resident of the State of Illinois.

c) Procurement Policy and Compliance Monitoring Board. The Attorney General shall appoint an OAG Procurement Policy and Compliance Monitoring Board (OAG PPCMB). The OAG PPCMB shall consist of 5 members. In making appointments to the OAG PPCMB, the Attorney General shall consider an individual's knowledge and experience in State government procurements and operations, including but not limited to certification as a professional public buyer or public purchasing officer by the Universal Public Purchasing Council. The members shall receive no additional compensation for serving on the OAG PPCMB. Except as provided in subsection (d), the OAG PPCMB shall:

be authorized to review, oversee, comment upon and recommend rules and practices governing the procurement, management, control and disposal of supplies, services, professional or artistic services, construction and capital improvements procured by the OAG;
attend any procurement meetings and access relevant files and reports;
be notified by the CPO if a conflict of interest is identified, discovered or reasonably suspected to exist. In such an event, the OAG PPCMB is to recommend action and give its recommendations to the CPO and Attorney General;
report to the Inspector General and Attorney General whenever the OAG PPCMB has cause to believe there has been a violation of the Code or this Part;
communicate directly with the Attorney General on all matters related to procurement;
report to the CPO regarding outstanding procurement problems;
ensure transparency and compliance with procurement laws;
report findings of waste to OAG divisions. If a division does not correct circumstances causing the waste, the OAG PPCMB shall report to the CPO and the Inspector General; and
perform other duties as required by law.

d) Chief Internal Auditor. The Attorney General shall appoint a Chief Internal Auditor. The auditor must have a Bachelor's degree, and must be a certified internal auditor, certified public accountant with at least 4 years of auditing experience, or an auditor with 5 years of experience. Any Chief Internal Auditor appointed on or after July 1, 2010 shall be appointed for a period of 5 years and may only be removed for cause. The Chief Internal Auditor shall report directly to the Attorney General. Subject to the approval of the Attorney General, and consistent with the Fiscal Control and Internal Auditing Act [20 ILCS 10], the Chief Internal Auditor shall:

direct the internal audit functions and activities of the OAG;
prepare audit reports and assess program goals;
be responsible for the preparation of an annual audit plan for submission to, and subject to the approval of, the Attorney General; and
perform other duties as required by law.

e) The CPO and Purchasing Officer owe a fiduciary duty to the State [30 ILCS 500/10-30].

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.1010 Construction

Any construction or construction related professional and artistic services in excess of the small purchase threshold for construction established by the OAG PPCMB ($30,000, or as adjusted for inflation based on the consumer price index as determined by the OAG PPCMB) will be procured by the CPO . The small purchase threshold established by the OAG PPCMB shall not exceed the small purchase threshold established by the Procurement Policy Board (see the Procurement Policy Board's website at ppb.illinois.gov). The CPO may consult with any other CPO created in Section 1-15.15 of the Code for assistance in obtaining any procurement, but shall be responsible for its own procurements under the Code.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.1510 Publicizing Procurement Actions

Notice of any procurement action required by the Code to be publicized in the Illinois Procurement Bulletin will be forwarded to DCMS for inclusion in the appropriate volume of the Bulletin.

44 Ill. Adm. Code 1300.1540 Method of Notices and Reports

Notices and reports required under the Code or this Part may be made by either paper or electronic means.

History

Source: Added at 40 Ill. Reg. 3401, effective February 11, 2016

44 Ill. Adm. Code 1300.1560 Supplemental Notice

The OAG may place ads in the Official State Newspaper selected by DCMS or other publications to supplement notice in the Bulletin.

44 Ill. Adm. Code 1300.1570 Error in Notice

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin.

44 Ill. Adm. Code 1300.1580 Direct Solicitation

In addition to giving notice in the Bulletin, the OAG may directly contact prospective vendors. Direct solicitation may be oral or in writing, but care will be taken to ensure that all vendors solicited in this manner receive the same information. When making direct solicitations, at least three vendors will be contacted.

44 Ill. Adm. Code 1300.2005 General Provisions

a) Late Bids or Proposals, Late Withdrawals and Late Modifications

Definition. Any bid or proposal received after the time, date and place set for receipt is late. A bid that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered, but the OAG will not be responsible for ensuring the subsequent delivery. Any withdrawal or modification of a bid or proposal received after the time and date set for opening of bids or proposals at the place designated for opening is late.
Treatment. No late bid or proposal, late modification, or late withdrawal will be considered unless the Procurement Officer, and not a designee, determines it would have been timely but for the action or inaction of OAG personnel directly serving the procurement activity (e.g., providing the wrong address).
Records. Records shall be made and, in accordance with the State Records Act [5 ILCS 160], kept for each late bid or proposal, late modification, or late withdrawal.
Other Submissions. Any other submission that has a time or date deadline shall be treated in the same manner as a late bid.

b) Extension of Time

The Procurement Officer may, prior to the date or time for submitting or modifying a bid or proposal, extend that date or time for the convenience of the OAG. Reasons for extension include but are not limited to allowing additional time for submissions to account for inclement weather, labor strikes, accidents and similar reasons.
After opening bids or proposals, the Procurement Officer may request bidders or offerors who submitted timely bids or proposals to extend the time during which the OAG may accept bids or proposals, provided that, with regard to bids, no other change is permitted. The reasons for requesting such extension shall be documented. An extension does not provide an opportunity for others to submit bids or proposals.

c) Electronic and Facsimile Submissions

The Invitation for Bids or Request for Proposals may state that electronic and facsimile machine submissions will be considered if they are received at the designated office by the time and date set for receipt. Any required attachments will be submitted as stated in the IFB or RFP.
Electronic submissions authorized by specific language in the IFB or RFP will be opened in accordance with electronic security measures in effect at the OAG at the time of opening. Unless the electronic submission procedures provide for a secure receipt, vendor assumes risk of premature disclosure due to submission in unsealed form.
Fax submissions authorized by specific language in the IFB or RFP will be placed in a sealed container upon receipt and opened as other submissions. Vendor assumes risk of premature disclosure due to submission in unsealed form.

d) Intent to Submit

e) Only One Bid or Proposal Received

If only one responsive bid is received, or if only one proposal is received, an award may be made to the single bidder or offeror if the Procurement Officer finds that the price submitted is fair and reasonable, and that either other prospective bidders had reasonable opportunity to respond, or there is not adequate time for resolicitation. Otherwise:

new bids or offers may be solicited, including under sole source (Section 1300.2025) or emergency (Section 1300.2030) procedures; or
the procurement may be cancelled.

f) Alternate or Multiple Bids or Proposals

Alternate bids or proposals may be accepted if:

A) permitted by the solicitation and in accordance with instructions in the solicitation;

B) only one vendor responded, in which case the alternate submission(s) may be evaluated and treated in accordance with Section 1300.2025 (Sole Source Procurement) of this Part; or

C) the low bidder, who has met all requirements of the solicitation, has provided a lower cost alternative that meets all of the material requirements of the specifications.

Multiple bids or proposals may be accepted if:

A) permitted by the solicitation and in accordance with instructions in the solicitation; or

B) only one vendor responded, then one or more of the submissions may be evaluated, provided that in the case of bids, only the lowest cost bid meeting specifications may be considered.

If a vendor clearly indicates a primary submission among alternate or multiple bids or proposals, then that primary submission shall be considered for award as though it were the only bid or proposal submitted by the vendor.

g) Multiple Items

An IFB or RFP may call for pricing of multiple items of similar or related type with award based on individual line item, group total of certain items, or grand total of all items.

h) "All or None" Bids or Proposals

"All or none" bids or proposals may be accepted if the evaluation shows an "all or none" award to be the lowest cost or best value of those submitted. Factors to be used to determine the State's best interest include but are not limited to whether the bid is the lowest of those submitted, reasonableness of the price and the cost and time necessary to solicit other bids.

i) Conditioning Bids or Proposals Upon Other Awards

Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall:

be rejected unless the vendor removes the condition; or
be evaluated and award made to that vendor if the vendor is also independently evaluated as the winner of the other IFB or RFP provided the agency need not delay procurement actions to accommodate the vendor's "all or none" condition.

j) Unsolicited Offers

Processing of Unsolicited Offers. The Procurement Officer may consider unsolicited offers and shall have final authority with respect to evaluation, acceptance and rejection of such unsolicited offers.
Conditions for Consideration. An unsolicited offer must be in writing and must be sufficiently detailed to allow a judgment to be made concerning the potential utility of the offer to the OAG.
Award. An award may not be made based on an unsolicited offer in place of the notice and competition requirements of the Code and this Part unless the unsolicited offer meets the requirements for small (Section 1300.2020), sole source (Section 1300.2025), or emergency (Section 1300.2030) procurement.
Confidentiality. Any request for confidentiality of data contained in an unsolicited offer must be made in writing, and vendors must clearly identify any information that is exempt from the disclosure requirements of the Illinois Freedom of Information Act [5 ILCS 140]. If an award is made, confidentiality of data shall be agreed upon by the parties and governed by the provisions of the contract. If agreement cannot be reached on confidentiality, the OAG shall reject the unsolicited offer.

k) Clarification of Bids and Proposals

The Procurement Officer may request that a vendor clarify its bid or proposal as a part of the evaluation process. A vendor shall not be allowed to change its bid or proposal in response to a request for clarification.

l) Extension of Time on Indefinite Quantity Contracts

m) Increase in Quantity on Definite Quantity Contracts

The quantity that may be ordered from a definite quantity contract may be increased by up to 20% provided the Procurement Officer determines that separate bidding for the additional quantity is not likely to achieve lower pricing.
The quantity may be increased by any percentage provided the dollar value of the increase does not exceed the applicable small purchase (Section 1300.2020) threshold.

n) Assignment, Novation or Change of Name

Assignment. No OAG contract is transferable, or otherwise assignable, without the written consent of the Procurement Officer, provided, however, that a vendor may assign monies receivable under a contract after due notice to the OAG. Assignment may require the execution of a contract with the assignee and in such cases the assignee must meet all requirements for contracting with the OAG.
Recognition of a Successor in Interest; Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee shall agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the OAG;

C) the transferor waives all rights under the contract as against the OAG; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the OAG, furnish a satisfactory performance bond.

Change of Name. A vendor may submit to the Procurement Officer a written request to change the name in which it holds a contract with the OAG. The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.
Reports. All change of name or novation agreements effected under this subsection (n) other than by the CPO shall be reported to the CPO within 30 days after the date that the agreement becomes effective.

o) Contracting for Installment Purchase Payments, Including Interest

p) Use of Source Selection Method Not Required

If OAG uses a method of source selection that is not, by law, required to be used (e.g., use of a competitive sealed bid for a small purchase), the OAG is not bound to strict compliance with the Code and rules governing the method of source selection used.

q) Vendor Signature

A bid or proposal submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the Procurement Officer within the time specified by that officer.

r) Stringing

Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited.

s) Documentation of Procurement Actions

Each Purchasing Officer shall maintain in the procurement or associated contract file all substantive documents and records of communications that pertain to the procurement and any resulting contract. This shall include, as applicable, but is not limited to:

The formal request for approval to procure, signed by the Procurement Officer, that establishes the reason for the contract decision or other form of decision memo showing the Procurement Officer approvals to proceed with the contract award;
Procurement Bulletin postings;
Solicitation document (e.g., IFB) and all amendments, clarifications and Best & Final requests;
Vendors' responses, including clarifications and responses to Best & Final requests;
Evaluation material (e.g., scoring guidelines and forms; completed score sheets for individual evaluators, including notes; evaluation committee's combined score sheets; evaluation committee's recommendation; and management's decision);
Protest and resolution;
Contract and any order, change, amendment, renewal or extension;
Contractor Performance Reviews;
All information from subsections (s)(1) through (8), less information exempt from disclosure under the Freedom of Information Act [5 ILCS 140], shall be prepared and available for inspection and copying, with information from subsections (s)(1) through (5) available on the date any award is posted to the Procurement Bulletin.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.2010 Competitive Sealed Bidding

a) Application

Competitive sealed bidding is the required method of source selection except as allowed by the Code and this Part. The provisions of this Section apply to every procurement required to be conducted by competitive sealed bidding.

b) The Invitation for Bids

Use. The IFB is used to initiate a competitive sealed bid procurement.
Content. The IFB shall include, at a minimum, the following:

B) the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description; and

C) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

Incorporation by Reference. The IFB may incorporate documents by reference provided that the IFB specifies where such documents can be obtained.

c) Bidding Time

Bidding time is the period of time between the date of notice or distribution of the IFB and the time and date set for receipt of bids. In each case, bidding time will be set to provide bidders a reasonable time to prepare their bids. A minimum of 14 days shall be provided unless a shorter time is allowed in this Part.

d) Bidder Submissions

Bid Form. The IFB shall provide a form that shall include space in which the bid price shall be inserted and that the bidder shall sign and submit along with all other necessary submissions.
Bid Samples and Descriptive Literature

A) Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

B) Unsolicited bid samples or descriptive literature are submitted at the bidder's risk, may not be examined or tested, will not be deemed to vary any of the provisions of the IFB, and may not be utilized by the vendor to contest a decision or understanding with the State.

e) Public Notice

Publication. Every procurement for goods and services in excess of $25,000 that must be procured using an IFB shall be publicized in the Bulletin (see Section 1300.1510).
Public Availability. A copy of the IFB shall be made available for public inspection.
Distribution. IFB or Notices of the Availability of IFB may be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition. Notices of Availability shall indicate where IFB may be obtained; generally describe the supply or service desired; and indicate the due date for bids; and may contain other appropriate information such as pre-bid conference data. Where appropriate, the Procurement Officer may require payment of a fee or a deposit for the supplying of the IFB.

f) Pre-Bid Conferences

Pre-bid conferences may be conducted to enhance understanding of the procurement requirements. They shall be announced to all prospective bidders known to have received an IFB. The conference may be designated as attendance mandatory or attendance optional. The conference should be held long enough after the IFB has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparation of bids. Nothing stated in the pre-bid conference shall change the IFB unless a change is made by written amendment to the IFB. Minutes of the conference shall be supplied to all those prospective bidders known to have received an IFB. If the conference is mandatory, the minutes shall be supplied to attendees only.

g) Amendments to Invitations for Bids

Form. Amendments to IFB shall be identified as such and shall require that the bidder acknowledge receipt of all amendments issued. The amendment shall reference the portions of the IFB it amends.
Distribution. Amendments shall be sent to all prospective bidders known to have received an IFB.
Timeliness. Amendments shall be distributed within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, the amendment shall extend the response time. If necessary, the response time may be extended by fax or telephone and confirmed in the amendment.

h) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the IFB prior to the time and date set for bid opening. A fax modification or withdrawal, or withdrawal received by telephone prior to the time and date set for bid opening, will be effective if followed in writing.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

i) Receipt, Opening and Recording of Bids

Receipt. Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening. If a bid is opened in error, the file shall so state.
Opening and Recording

A) Bids and modifications shall be opened publicly or through an electronic procurement system, in the presence of one or more witnesses, at the time, date, and place designated in the IFB. Opening shall be witnessed by a State employee or any other person present, but the person opening bids shall not serve as witness. The name of each bidder, the bid price, and such other information as is deemed appropriate by the Procurement Officer shall be recorded and the name of each bidder read aloud or otherwise made available. The names of required witnesses shall also be recorded at the opening.

B) The winning bid shall be available for public inspection after award, along with the record of the other bids.

Confidential Data. The Procurement Officer shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. If the parties do not agree as to the disclosure of data or other information, the bid shall be rejected as nonresponsive.

j) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the IFB, except as permitted in this Section. The IFB shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder. No bid shall be evaluated for any requirements or criteria that are not disclosed in the IFB.
Responsibility. Responsibility of prospective contractors is covered by Section 1300.2046.
Responsiveness. Section 15-85 of the Code defines responsive bidder as a person who has submitted a bid that conforms in all material respects to the Invitation for Bids.

i) inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

ii) examination of such elements as appearance, finish, taste, or feel; or

iii) other examinations to determine whether it conforms with any other purchase description requirements.

B) The acceptability evaluation is not conducted for the purpose of determining whether one bidder's product or service capability is superior to another, but only to determine that a bidder's offering is acceptable as set forth in the IFB. Any bidder's offering which does not meet the acceptability requirements shall be rejected.

Determination of Lowest Bidder. Following determination of product or service acceptability as set forth in this subsection (j), bids will be evaluated to determine which bidder offers the lowest cost to the OAG in accordance with the evaluation criteria set forth in the IFB. Only objectively measurable criteria that are set forth in the IFB shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost and ownership or life-cycle cost formulas. While evaluation factors need not be precise predictors of actual future costs, they should be, to the extent possible, reasonable estimates based upon information the OAG has available concerning future use and shall provide for equitable treatment of all bids. Pricing for optional goods or services or for renewal terms may be considered particularly when the pricing for such items or terms is unbalanced when compared to other pricing in the bid.
Price Negotiation. This Section permits negotiations with the low bidder to obtain a lower price for the item bid.

k) Documentation of Award

Following award, a record showing the successful bidder shall be made a part of the procurement file.

l) Award to Other Than Low Bidder

The Procurement Officer may award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest. The written explanation must be published in the appropriate volume of the Bulletin.
This action may be appropriate when the difference in quality of goods or services or speed of delivery is so great as compared to the difference in price, and considering the needs of the OAG, that a best value award is justified. However, if the difference in price is significant, the Procurement Officer may not utilize this provision.
The explanation must include:

A) a description of the OAG's needs;

B) a determination that the anticipated cost will be fair and reasonable;

C) a listing of all reasonable and responsive bidders; and

D) the name of the bidder selected, pricing and the reasons for selecting that bidder.

The explanation shall be filed with the Legislative Audit Commission and the OAG PPCMB.

m) Publicizing Award

The successful bidder shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication. In procurements over the small purchase limit set in Section 1300.2020 of this Part, notice of award shall be published in the Bulletin.

History

Source: Amended at 42 Ill. Reg. 13585, effective June 29, 2018

44 Ill. Adm. Code 1300.2012 Multi-Step Sealed Bidding

a) Definition. Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the OAG, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase, have their price bids considered.

b) Conditions for Use. The multi-step sealed bidding method may be used when it is not practical to prepare initially a definitive purchase description which will be suitable to permit an award based on price. Multi-step sealed bidding may be used when it is considered desirable:

to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and
to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, where appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description.

c) Pre-Bid Conferences in Multi-Step Sealed Bidding

Prior to the submission or evaluation of unpriced technical offers, a pre-bid conference as contemplated by Section 1300.2010 (Competitive Sealed Bidding) and Section 1300.2012 (Multi-Step Sealed Bidding) may be conducted by the Procurement Officer.

d) Procedure for Phase One of Multi-Step Sealed Bidding

Form. Multi-step sealed bidding shall be initiated by the issuance of an IFB in the form required by Section 1300.2010 (Competitive Sealed Bidding), except as hereinafter provided. In addition to the requirements set forth in Section 1300.2010, the multi-step IFB shall state:

A) that unpriced technical offers are requested;

B) whether priced bids are to be submitted at the same time as unpriced technical offers and, if they are, that such priced bids shall be submitted in a separate sealed envelope;

D) the criteria to be used in the evaluation of the unpriced technical offers;

E) that the OAG, to the extent the Procurement Officer finds necessary, may conduct oral or written discussions of the unpriced technical offers; and

F) that the item being procured shall be furnished generally in accordance with the bidder's technical offer as found to be finally acceptable and shall meet the requirements of the IFB.

Amendments to the IFB. After receipt of unpriced technical offers, amendments to the IFB shall be distributed only to bidders who submitted unpriced technical offers, and they shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the Procurement Officer, a contemplated amendment will significantly change the nature of the procurement, the IFB shall be cancelled in accordance with Section 1300.2040 (Cancellation of Solicitation; Rejection of Bids or Proposals) of this Part and a new IFB issued.
Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers submitted by bidders shall be opened in the presence of at least one witness. Such offers shall not be disclosed to unauthorized persons. Bidders may request nondisclosure of trade secrets and other proprietary data identified in writing.
Evaluation of Unpriced Technical Offers. The unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the IFB. The unpriced technical offers shall be categorized as:

A) acceptable;

B) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

C) unacceptable, in which case the Procurement Officer shall record in writing the basis for finding an offer unacceptable and make it part of the procurement file.

The Procurement Officer may initiate Phase Two of the procedure if, in the Procurement Officer's opinion, there are sufficient acceptable unpriced technical offers to assure effective price competition in the second phase without technical discussions. If the Procurement Officer finds that such is not the case, the Procurement Officer may commence discussions of the unpriced technical proposals.
Discussion of Unpriced Technical Offers. The Procurement Officer may conduct discussions with any vendor who submits an acceptable or potentially acceptable technical offer. During the course of such discussions, the Procurement Officer shall not disclose any information derived from one unpriced technical offer to any other bidder. Any such bidder may submit supplemental information amending its technical offer at any time until the closing date established by the Procurement Officer. Such submission may be made at the request of the Procurement Officer or upon the bidder's own initiative.
Unacceptable Unpriced Technical Offer. When the Procurement Officer determines a bidder's unpriced technical offer to be unacceptable, such offeror shall not be afforded an additional opportunity to supplement its technical offer.

e) Procedure for Phase Two

Initiation. Upon the completion of Phase One, the Procurement Officer shall either:

A) open priced bids submitted in Phase One (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; or

B) if priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

Conduct. Phase Two shall be conducted as any other competitive sealed bid procurement except:

A) no public notice need be given of this invitation to submit priced bids because such notice was previously given;

B) after award, the unpriced technical offer of the successful bidder shall be disclosed as follows: The Procurement Officer shall examine written requests of confidentiality for trade secrets and proprietary data in the technical offer of such bidder to determine the validity of any such requests. If the parties do not agree as to the disclosure of data, the Procurement Officer shall reject the offer. Such technical offer shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data; and

C) unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2015 Competitive Sealed Proposals

a) Competitive Sealed Proposals may be used whenever permitted by the Code and as described in this Part.

b) The Competitive Sealed Proposal method of source selection may be used to procure the following categories:

electronic data processing equipment, software, and services;
telecommunications equipment, software, and services;
consulting services; and
employee benefits and insurance.

c) Competitive Sealed Proposals may be used on a case-by-case basis when it is determined by the Procurement Officer that competitive sealed bidding is either not practicable or advantageous.

"Practicable" Distinguished from "Advantageous." As used in Section 20-15 (Competitive Sealed Proposals) of the Illinois Procurement Code and this Section, the term "practicable" denotes what may be accomplished or put into practical application, and "advantageous" connotes a judgmental assessment of what is in the State's best interest. Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest. Before a contract may be entered into by competitive sealed proposals, the Procurement Officer shall determine in writing that competitive sealed bidding is either not practicable or not advantageous to the OAG.
General Discussion

A) If competitive sealed bidding is not practicable or is not advantageous, competitive sealed proposals should be used.

B) The key element in determining relative advantage is the need for flexibility. The competitive sealed proposal method differs from competitive sealed bidding in two important ways:

i) it permits discussions with competing offerors and changes in their proposals, including price; and

ii) it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract.

C) Where evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, where the types of supplies or services may require the use of comparative, judgmental evaluations to evaluate them adequately, or where the type of need to be satisfied involves weighing aesthetic values to the extent that price is a secondary consideration, use of competitive sealed proposals is the appropriate procurement method.

When Competitive Sealed Bidding Is Not Practicable. Competitive sealed bidding is not practicable unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the IFB. Factors to be considered in determining whether competitive sealed bidding is not practicable include:

A) whether the contract needs to be other than a fixed-price type;

B) whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

C) whether offerors may need to be afforded the opportunity to revise their proposals, including price;

D) whether award may need to be based upon a comparative evaluation as stated in the RFP of differing price, quality (which includes technical and performance capability and the content of the technical proposal), and contractual factors in order to determine the most advantageous offering to the OAG; and

E) whether the primary consideration in determining award may not be price.

When Competitive Sealed Bidding Is Not Advantageous. A determination may be made to use competitive sealed proposals if it is determined that it is not advantageous to the OAG, even though practicable, to use competitive sealed bidding. Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

A) whether prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the OAG; and

B) whether the factors listed in subsection (c)(3) of this Section are desirable in conducting a procurement rather than necessary.

d) Content of the Request for Proposals

The RFP shall be prepared in accordance with Section 1300.2010 (Competitive Sealed Bidding) provided that it shall also include:

a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions; and
a statement of when and how price should be submitted.

e) Receipt and Registrations of Proposals

Proposals shall be opened publicly or via an electronic procurement system, in the presence of at least one witness, but proposals shall be opened in a manner to avoid disclosure of contents to competing offerors during the process of negotiation. Proposals and modifications shall be time-stamped upon receipt and held in a secure place until the established due date. After the date established for receipt of proposals, a Register of Proposals shall be prepared which shall include for all proposals the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service item offered. The Register of Proposals shall be open to public inspection after award of the contract.

f) Evaluation of Proposals

Evaluation Factors in the RFP. The RFP shall state all of the evaluation factors, including price, and their relative importance.
Evaluation. The evaluation shall be based on the evaluation factors set forth in the RFP. Factors not specified in the RFP shall not be considered. Numerical rating systems may be used but are not required.
Classifying Proposals. For the purpose of conducting discussions, proposals shall be initially classified as:

A) acceptable;

B) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

C) unacceptable.

Offerors whose proposals are unacceptable shall be so notified promptly.

g) Proposal Discussions with Individual Offerors

"Offerors" Defined. For the purposes of Section 20-15(f) (Competitive Sealed Proposals, Discussion with Responsible Offerors and Revisions of Proposals) of the Illinois Procurement Code and this Section, the term "offerors" includes only those businesses submitting proposals that are acceptable or potentially acceptable. The term shall not include businesses who submitted unacceptable proposals.
Purposes of Discussions. Discussions are held to:

A) promote understanding of the OAG's requirements and the offerors' proposals; and

B) facilitate arriving at a contract that will be most advantageous to the OAG, taking into consideration price and the other evaluation factors set forth in the RFP.

Conduct of Discussions. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. If during discussions there is a need for any substantial clarification of, or change in, the RFP, the Request shall be amended to incorporate such clarification or change. Auction techniques (revealing one offeror's price to another) and disclosure of any information derived from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.
Best and Final Offers. The Procurement Officer may request best and final offers with a common date and time for submission of best and final offers. The Procurement Officer may conduct additional discussions or change the OAG's requirements and require another submission of best and final offers. If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediate previous offer will be construed as its best and final offer.

h) Award

An award shall be made by the Procurement Officer pursuant to a written determination showing the basis on which the award was found to be most advantageous to the OAG, based on the factors set forth in the RFP. The contract file shall contain the basis on which the award was made.

i) Publicizing Awards

After a contract is entered into, notice of award shall be posted in the Procurement Officer's office. When the award exceeds the small purchase limit set in Section 1300.2020 of this Part, notice of award shall be published in the Bulletin.

History

Source: Amended at 42 Ill. Reg. 13585, effective June 29, 2018

44 Ill. Adm. Code 1300.2020 Small Purchases

a) Application

Procurements of less than $100,000 for supplies or services, and less than $100,000 for professional and artistic services contracts that are for a nonrenewable term of less than one year, may be made without notice, competition or use of any prescribed method of source selection.

b) In determining whether a contract is under the limit, the value of the contract for the full term and any optional renewals shall be utilized. The stated value of the goods or services, plus any optional goods and services, shall be utilized. When the term is calculated month-to-month or in a similar fashion, the amount shall be calculated for a twelve month period.

c) Procurement requirements shall not be artificially divided to avoid using the other source selection methods set forth in Section 20-5 (Methods of Source Selection) of the Illinois Procurement Code or this Part.

d) If, after signing the contract, the actual need is determined to be greater than the small purchase amount identified in subsection (a), and the agency determines that reprocurement is not appropriate, the procedures for sole source or emergency procurement, whichever is applicable, must be complied with to obtain the additional supplies or services.

History

Source: Amended at 42 Ill. Reg. 13585, effective June 29, 2018

44 Ill. Adm. Code 1300.2025 Sole Source Procurement

a) Application

The provisions of this Section apply to procurement from a sole source unless the estimated amount of the procurement is within the limit set in Section 1300.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 1300.2030 (Emergency Procurements).

b) Conditions for Use of Sole Source Procurement

Sole source procurement is permissible when a requirement is available from only a single supplier or when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one potential bidder or offeror authorized to provide that item. The following are examples of circumstances that could necessitate sole source procurement:

the compatibility of equipment, accessories, replacement parts, or service is a paramount consideration;
a sole supplier's items are needed for trial use or testing;
a sole supplier's item is to be procured for commercial resale;
public utility regulated services are to be procured;
the item is copyrighted or patented and the item is not available except from the holder of the copyright or patent;
the procurement of the media for advertising;
the procurement of art or entertainment services; and
changes to existing contracts (subsection (c)).

c) Changes

Changes to existing contracts germane to the original contract, which are necessary or desirable to complete the project, and which can be best accomplished by the contract holder, may be procured under this provision if the Procurement Officer determines that the cost of delay or disruption to the contract or program, and the cost of a new solicitation, clearly indicate that the existing vendor is the sole economically feasible source.
A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 1300.2020, or that is an emergency as defined in Section 1300.2030, may be made in accordance with procedures governing those Sections and need not comply with these sole source procedures. A change in the length of the contract that does not exceed 30 days and other minor, immaterial changes to the scope or administrative provisions of a contract shall not be considered changes subject to these sole source procedures.

d) Publication

Before entering into a sole source contract, the CPO shall publish a written description of intent to enter into a sole source contract along with the sole source procurement justification, a description of the goods or services to be procured, the intended sole source contractor, and notice that any public hearing requested under this Section will be held on the 15th day after publication of the notice (stating the date, time and place of the potential public hearing) or on the next business day, if the 15th day after publication is a weekend or a State holiday. The notice shall be posted in the Bulletin at least 14 days before a sole source contract is awarded.

e) Hearing

An interested party may submit a written request for a public hearing. Any hearing shall be conducted in accordance with the procedures set forth in Section 1300.5555.

f) Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, as to price, delivery, and terms, and shall maintain a record of sole source procurements showing:

the vendor's name;
the amount and type of the contract;
a listing of the supplies, services, or construction procured under each contract; and
the identification number of the contract file.

g) Prohibition Against Amending Contracts for Professional or Artistic Services Based on Sole Source

The provisions of this Part shall not apply to an amendment to a contract for professional or artistic services if:

there is an increase in the amount paid under the contract of more than 5% of the initial award; or
the term of the contract would be extended by a period not to exceed the time reasonably needed for a competitive procurement or 2 months, whichever is less.

History

Source: Amended at 37 Ill. Reg. 19316, effective November 12, 2013

44 Ill. Adm. Code 1300.2030 Emergency Procurements

a) Applications

The provisions of this Section apply to every procurement over the small purchase limit set in Section 1300.2020 of this Part and that is not a sole source procurement under Section 1300.2025, made under emergency (including quick purchase) conditions.

b) Definition of Emergency Conditions

A procurement may be made under this Section in situations in which:

A) public health or safety, including the health or safety of any particular person, is threatened;

B) repairs are needed to OAG property to protect against further loss or damage to OAG property, or to prevent loss or damage to OAG property;

C) action is needed to prevent or minimize serious disruption in OAG services;

D) action is needed to ensure the integrity of State or OAG records;

E) a supplier of needed goods or services announces bankruptcy, going out of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is in the State's best interest;

F) commodity items are available on the spot market at prices such that good business judgment mandates a purchase if the spot price must be taken immediately;

G) legal services to assist in the formulation of policy, in drafting or evaluating documents, or in determining the extent of statutory authority are needed sooner than the competitive process would allow;

H) equipment or services are necessary in the furtherance of covert activities lawfully conducted by the OAG. Any required disclosures shall be made so as not to jeopardize those covert activities;

I) immediate action is necessary to avoid lapsing or loss of federal or donated funds;

J) the need for items to protect or further the State's interests is immediate and use of other competitive source selection procedures under the Code and this Part cannot be accomplished without significant risk of causing serious disadvantage to the State; or

K) immediate action is necessary to protect the collection of substantial State revenue.

After Unsuccessful Competitive Sealed Bidding or Proposals or Request for Proposals. When bids or proposals received pursuant to a competitive sealed bid or competitive sealed proposal method are unreasonable or noncompetitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals, and if emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding, an emergency procurement may be made.
Extension to Allow Competition. Extending an existing contract for the period of time needed to conduct a competitive method of source selection if terminating or allowing the contract to terminate would not be advantageous to the State.
Quick Purchase

A) A supplier announces bankruptcy, cessation of business, or loss of franchise, or gives other similar reason so that making a purchase immediately is more advantageous to the State than instituting a competitive procurement under the provisions of the Code and this Part for the supplies or services;

B) Items are available on the spot market or at discounted prices for a limited time, so that good business judgment mandates a purchase immediately to take advantage of the availability and price;

C) Availability of rare items such as books of historical value.

c) Scope of Emergency Conditions

Emergency procurement shall be limited to those supplies, services, or construction items necessary to meet the emergency need.
Emergency procurements shall be limited to the time reasonably needed for a competitive procurement, but in no event shall that time period exceed 90 days unless the CPO determines additional time is needed.
In the event an emergency procurement exceeds 90 days, the contract scope and duration may be extended after notice and a public hearing as set out in Section 1300.5555. The extension shall be limited in items, quantity and days.

d) Authority to Make Emergency Procurements

Emergency procurements may be made when an emergency condition arises and the need cannot be met through normal procurement methods, provided that, whenever practical, existing OAG contracts shall be utilized and, whenever practical, approval by the CPO shall be obtained prior to the procurement. The Procurement Officer shall be responsible for making the filings required in Section 20-30 of the Code.

e) Source Selection Methods

Any method of source selection, whether or not identified in the Code or this Part, may be used to conduct the procurement in emergency situations. The procedure used shall be selected to assure that the required supplies, services, or construction items are procured in time to meet the emergency. Such competition as is practicable shall be obtained.

f) Determination and Record of Emergency Procurement

Determination. The Procurement Officer responsible for the procurement shall make a written determination stating the basis for an emergency procurement and for the selection of the particular contractor. The determination shall be kept in the contract file with a copy sent promptly to the CPO and the OAG PPCMB.
Record. A record of each emergency procurement shall be filed by the CPO with the OAG PPCMB within 10 days after the procurement, and shall include the following information:

A) the vendor's name;

B) the amount and type of the contract, provided that, if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known;

C) a description of what the vendor will do or provide, such as a listing of the supplies and services to be procured; and

D) the reasons for using the emergency method of source selection.

Notice of the emergency procurement shall be published in the Bulletin in accordance with Subpart D of this Part.

g) Extension of Emergency

In the event an emergency procurement exceeds 90 days, the emergency procurement may be extended after notice and a public hearing pursuant to Section 1300.5555. Prior to the execution of the extension:

the CPO must determine additional time is necessary;
the contract scope and duration must be limited to the emergency;
a public hearing must be held;
the CPO must provide written justification for the emergency contract;
notice of the intent to extend shall be provided to the OAG PPCMB and published in the Bulletin in accordance with Subpart D of this Part.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2035 Competitive Selection Procedures for Professional and Artistic Services

a) Application

The provisions of this Section apply to every procurement of professional and artistic services except those professional and other services necessary to prepare for anticipated litigation, enforcement actions or investigations, which are exempt from the requirements of the Code and this Part. "Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 525/1-15.60].

b) Professional and artistic services are further defined as follows:

"Qualified by education" means the individual who would perform the services must have obtained the level of education specified in the RFP.
"Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the RFP.
"Qualified by technical ability" means the individual who would perform the services must demonstrate a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the RFP.
An essential element distinguishing professional and artistic services from other services is confidence, trust, and belief in not only the ability, but the talent, of the individual performing the service. These services are primarily for intellectual or creative skills. Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts. (See Illinois Attorney General Opinion S-256, January 20, 1971.)
If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.
When a State agency requires services that meet the requirements of this subsection (b), the competitive selection procedures described in this Section must be followed. Services that do not meet the requirements of this Section must be procured in accordance with other methods of source selection authorized by the Code and this Part.

c) The categories of services enumerated below shall be considered and procured as professional and artistic services. With regard to other services, the Purchasing Officer may determine whether the factors identified in subsection (b), when applied to particular services to be procured, require such services to be procured as professional and artistic under these competitive selection procedures, or as services that are subject to one of the other methods of source selection authorized by the Code and this Part. The following categories are examples of disciplines that would always be professional and artistic services:

law;
accounting;
medicine;
dentistry; and
clinical psychology.

d) Conditions for Use of Competitive Selection Procedures

Except as authorized under Section 20-25 (Sole Source Procurement) or Section 20-30 (Emergency Procurements) of the Code, these competitive selection procedures shall be used for all procurements of professional and artistic services of $20,000 or more. Any procurement of such services in an amount of less than $20,000 and for a nonrenewable term of less than one year may be procured in accordance with Section 1300.2020 (Small Purchases) of this Part.

e) Determinations Required Prior to Use of Competitive Selection Procedures

The CPO shall determine in writing, prior to announcing the need for any such services:

that the services to be acquired are professional or artistic;
the nature of the relationship to be established between the OAG and the vendor by the proposed contract; and
that the OAG has developed, and fully intends to implement, a written plan for utilizing such services which will be included in the contractual statement of work.

f) Prequalification

The CPO shall maintain a list of prequalified professional and artistic vendors in accordance with Sections 1300.2044 and 1300.2045 of this Part. Persons may amend statements of qualifications at any time by filing a new statement.

g) Public Notice in Competitive Selection Procedures

Notice of the need for professional and artistic services shall be made by the Procurement Officer in the form of an RFP. Adequate public notice shall be given as provided in Section 1300.2010 (Competitive Sealed Bidding, Public Notice), and additionally may consist of distributing Requests for Proposals to prequalified persons interested in performing the services required by the proposed contract.

h) Request for Proposals

Contents. The RFP shall be in the form specified by the CPO and contain at least the following information:

A) the type of services required;

B) a description of the work involved;

C) an estimate of when and for how long the services will be required;

D) the type of contract to be used;

E) a date by which proposals for the performance of the services shall be submitted;

F) a statement of the minimum information that the proposal shall contain, which shall include:

i) the name of the offer or, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

ii) if deemed relevant by the Procurement Officer, the age of the offeror's business and average number of employees over a previous period of time, as specified in the RFP;

iii) the abilities, qualifications, and experience of all persons who would be assigned to provide the required services;

iv) a listing of other contracts under which services similar in scope, size, or discipline to the required services were performed or undertaken within a previous period of time, as specified in the RFP;

v) a plan giving as much detail as is practical explaining how the services will be performed;

G) price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package); and

H) the factors to be used in the evaluation and selection process and their relative importance.

Evaluation. Proposals shall be evaluated only on the basis of evaluation factors stated in the RFP. Price will not be evaluated until after selection of the most qualified vendor. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum factors are:

A) the plan for performing the required services;

C) the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

D) a record of past performance of similar work.

i) Pre-Proposal Conferences

Pre-proposal conferences, as appropriate, may be conducted in accordance with Section 1300.2010 (Competitive Sealed Bidding).

j) Receipt and Handling of Proposals

Registration. Proposals and modifications shall be sent to the Procurement Officer as directed in the solicitation and shall be time-stamped upon receipt and held in a secure place until the established due date and time, at which time they will be opened by the Procurement Officer. Proposals shall not be opened publicly nor disclosed to unauthorized persons, but shall be opened in the presence of at least one witness. A register of proposals shall be established which shall include, for all proposals, the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the services offered. The register of proposals shall be open to public inspection only after award of the contract.

k) Request for Nondisclosure of Data

If the offeror selected for award has requested in writing the nondisclosure of trade secrets and other proprietary data so identified, the head of the agency conducting the procurement or a designee of such officer shall examine the request in the proposal to determine its validity prior to entering negotiations. If the parties do not agree as to the disclosure of data in the contract, the Procurement Officer shall reject the proposal.

l) Discussions

Discussions Permissible. The Procurement Officer shall evaluate all proposals submitted and may conduct discussions with any offeror. The purposes of such discussions shall be to:

A) determine in greater detail such offeror's qualifications; and

B) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach.

No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors, and the agency conducting the procurement shall not disclose any information contained in any proposals until after award of the proposed contract has been made. The proposal of the offeror awarded the contract shall be open to public inspection.

m) Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation, and discussion, the Procurement Officer shall rank the acceptable offerors in the order of their respective qualifications.

n) Evaluation of Pricing Data

Pricing submitted for all acceptable proposals shall be opened and ranked. If the low price is submitted by the most qualified vendor, negotiation of price shall commence. If the price of the most qualified is not low and if it is under $25,000, the Procurement Officer, but not a designee, may award to that vendor. If the price is over $25,000, the Procurement Officer, but not a designee, must state why the qualifications were deemed more important than price and such determination shall be published in the Bulletin.

o) Negotiation and Award of Contract

General. The Procurement Officer shall negotiate a contract with the best qualified offeror for the required services at compensation determined in writing to be fair and reasonable.
Elements of Negotiation. Contract negotiations shall be directed toward:

A) making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

B) determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services, and the scope, complexity, and nature of such services.

Successful Negotiation of Contract with Best Qualified Offeror. If compensation, contract requirements, and contract documents can be agreed upon with the best qualified offeror, the contract shall be awarded to that offeror, unless the procurement is cancelled.
Failure to Negotiate Contract with Best Qualified Offeror.

A) If compensation, contract requirements, or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons for the lack of agreement shall be placed in the file and the Procurement Officer shall advise the offeror of the termination of negotiations.

p) Notice of Award

Written notice of award shall be public information and made a part of the contract file. The CPO shall publish the names of the responsible decision makers of the OAG, the successful vendor, a contract reference number or other identifier, and the value of the contract. Publication shall be in the next available issue of the Bulletin.

q) A CPO may allow the Purchasing Officer responsible for conducting a small, sole source or emergency procurement of professional and artistic services to publish notices of those procurements.

r) Post Performance Review

The Purchasing Officer shall require the using division to provide a synopsis of the contract and shall rate the vendor's performance using the form developed by the Purchasing Officer. A copy of the completed form shall be provided to the Purchasing Officer.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.2036 Other Methods of Source Selection

a) Split Award

An award of a definite quantity requirement may be split between or among two or more contractors. Each portion shall be for a definite quantity and the sum of the portions shall be the total definite quantity required. A split award may be used only when award to more than one bidder or offeror for different amounts of the same item are necessary to obtain the total quantity or the required delivery.
The Procurement Officer shall make a written determination setting forth the reasons for the split award, which determination shall be made a part of the procurement file.

b) Multiple Award

A multiple award is an award of an indefinite quantity contract to more than one bidder or offeror when the OAG is obligated to order all of its actual requirements from those vendors.
A multiple award may be made when award to two or more bidders or offerors for similar products is necessary for adequate delivery, service, or product compatibility. Any multiple award shall be made in accordance with the provisions of Section 1300.2010 (Competitive Sealed Bidding), Section 1300.2015 (Competitive Sealed Proposals), Section 1300.2020 (Small Purchases), and Section 1300.2030 (Emergency Procurements), as applicable. Awards shall not be made for the purpose of simply dividing the business or to select products or suppliers in accordance with user preference unrelated to utility or economy. Any such awards shall be limited to the least number of suppliers necessary to meet the valid requirements of the OAG.
The OAG shall reserve the right to take bids separately if a particular quantity requirement arises that exceeds its normal requirement or an amount specified in the contract.
If a multiple award is anticipated, the solicitation shall state this fact as well as the criteria for award.

c) Auction

d) Non-governmental Joint Purchase

The Procurement Officer may enter into an agreement with a person not eligible for the Governmental Joint Purchasing Act for the joint procurement of anything covered by the Code. Any method of source selection may be used and may be modified or adapted to meet the needs of the non-State entity.

e) Federal Requirements

Requirements of the Code and this Part may be modified or adapted to meet federal requirements.

f) Donations

With approval of the CPO, when the OAG receives a donation that provides the majority of the funding, the OAG may follow any procurement or contracting requirements established as a condition of the donation, but shall follow the Code and this Part to the extent practicable.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2037 Tie Bids and Proposals

a) Tie bids or proposals are those from responsive and responsible vendors that are identical in price or valuation.

b) Tie bids or proposals will be treated as follows:

If the tied vendors include only one Illinois resident vendor, the Illinois resident vendor shall be given the award. "Illinois resident vendor" has the meaning given in Section 1300.4510 of this Part. In all other situations, the decision shall be made in accordance with subsections (b)(2) through (5) of this Section. If two or more Illinois resident vendors are tied, award will be made pursuant to subsections (b)(2) through (5).
If there is a significant difference in responsibility (including ability to provide the service or deliver in the quantity and at the time required), the award will be made to the vendor who is deemed to be the most responsible. A vendor who has had experience in contracting with the State or OAG shall be given additional consideration in determining responsibility if the Procurement Officer determines that dealing with a vendor that has knowledge of State requirements, contracts, job sites, payment practices and such other factors and with which there has been favorable past experience increases the likelihood of successful performance.
If there is no significant difference in responsibility, but there is a difference in the quality of the goods or services offered, the vendor offering the best quality will be accepted.
If there is no significant difference in responsibility and no difference in quality of the goods or services offered, the vendor offering the earliest delivery time will be accepted in any case in which the solicitation specified that the needs of the OAG require as early delivery as possible.
If the bids or proposals are equal in every respect, the award shall be made by lot unless the Procurement Officer determines that splitting the award among two or more of the tied bidders is in the best interest of the State. Awards may be split if all affected bidders agree, if splitting is feasible given the type of goods or service requested, if overall pricing would not increase, if delivery would be better ensured, or if necessary or desirable to promote future competition.

c) Record

Records shall be made of all procurements on which tie bids or proposals are received, showing at least the following information:

the identification number of the solicitation;
the supply, service, or construction item; and
a listing of all the bidders and the prices submitted.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2038 Mistakes

a) General

Corrections to bids, proposals or other procurement processes are allowed, but only to the extent not contrary to the best interest of the State or the fair treatment of other bidders.

b) Mistakes Discovered Before Opening

A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting as provided in this Section.

c) Confirmation of Mistake

When the Procurement Officer knows or has reason to conclude that a mistake has been made, such officer shall request the vendor to confirm the information. Situations in which confirmation should be requested include obvious or apparent errors on the face of the document or a price unreasonably lower than the others submitted. If the vendor alleges a mistake, the bid or proposal may be corrected or withdrawn if the conditions set forth in this Section, as applicable, are met.

d) Mistakes in Bids Discovered After Opening but Before Award

This subsection (d) sets forth procedures to be applied in situations in which mistakes in bids are discovered after the time and date set for bid opening but before award.

Minor informalities. A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation of a bid from the exact requirement of the IFB, the correction or waiver of which would not be prejudicial to the OAG (i.e., the effect on price, quality, quantity, delivery, or contractual conditions is negligible). The Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the State. Examples of minor informalities as to form include the failure of a bidder to:

A) return the number of signed bids required by the IFB;

C) acknowledge receipt of an amendment to the IFB, but only if:

i) it is clear from the bid that the bidder received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on price, quantity, quality, or delivery.

Mistakes Where Intended Correct Bid Is Evident. If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.
Mistakes Where Intended Correct Bid Is Not Evident. A bidder may be permitted to withdraw a low bid if:

A) a mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or

B) the bidder submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

e) Mistakes Discovered After Receipt of Proposals but Before Award

This subsection (e) sets forth procedures to be applied in four situations in which mistakes in proposals are discovered after receipt of proposals but before award.

During Discussions; Prior to Best and Final Offers. Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may freely correct any mistake prior to the date set for conclusion of discussions or for receipt of best and final offers.
Minor Informalities. Minor informalities, unless otherwise corrected by an offeror as provided in this Section, shall be treated as they are under competitive sealed bidding. (See subsection (d).)
Corrections of Mistakes. If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only if:

A) the mistake and the intended correct offer are clearly evident on the face of the proposal, in which event the proposal may not be withdrawn; or

Withdrawal of Proposals. If discussions are not held, or if the best and final offers upon which award will be made have been received, the offeror may be permitted to withdraw the proposal if:

A) the mistake is clearly evident on the face of the proposal and the intended correct offer is not;

B) the offeror submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made but does not demonstrate the intended correct offer; or

f) Mistakes Discovered After Award

Mistakes shall not be corrected after award of the contract except when the Procurement Officer finds it would be unconscionable not to allow the mistake to be corrected, such as obvious typographical or calculation errors.

g) Determinations Required

When a proposal is corrected or withdrawn, or correction or withdrawal is denied, a written determination shall be prepared showing that relief was granted or denied in accordance with this Part. The Procurement Officer shall prepare the determination.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2040 Cancellation of Solicitations; Rejection of Bids or Proposals

a) Scope of this Section

The provisions of this Section shall govern the cancellation of any solicitations whether issued by the OAG under competitive sealed bidding, competitive sealed proposals, small purchases, or any other source selection method, and rejection of bids or proposals in whole or in part.

b) Policy

Any solicitation may be cancelled when the Procurement Officer believes cancellation to be in the State's best interest. (See subsection (c)(2) below.) Nothing shall compel the award of a contract.

c) Cancellation of Solicitation; Rejection of All Bids or Proposals Prior to Opening

As used in this Section, "opening" means the date set for opening of bids, receipt of unpriced technical offers in multi-step sealed bidding, or receipt of proposals in competitive sealed proposals.
Prior to opening, a solicitation may be cancelled in whole or in part when the Procurement Officer determines in writing that such action is in the State's best interest for reasons including, but not limited to:

A) the OAG no longer requires the supplies, services, or construction;

B) the OAG no longer can reasonably expect to fund the procurement;

C) proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable;

D) ambiguous or otherwise inadequate specifications;

E) the solicitation did not provide for consideration of all factors of significance to the OAG;

F) prices exceed available funds and it would not be appropriate to adjust quantities to accommodate funding constraints;

G) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

H) there is reason to question whether the bids or proposals may not have been arrived at independently in open competition, may have been the result of collusion or may have been submitted in bad faith.

When a solicitation is cancelled prior to opening, notice of cancellation shall be sent to all businesses solicited.
The notice of cancellation shall:

A) identify the solicitation;

B) briefly explain the reason for cancellation; and

C) where appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurements of similar supplies, services, or construction.

d) Cancellation of Solicitation; Rejection of All Bids or Proposals After Opening

After opening but prior to award, all bids or proposals may be rejected in whole or in part when the Procurement Officer determines in writing that the action is in the State's best interest, for reasons including, but not limited to:

A) the supplies, services, or construction being procured is no longer required;

B) ambiguous or otherwise inadequate specifications were part of the solicitation;

C) the solicitation did not provide for consideration of all factors of significance to the OAG;

D) prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

E) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

F) there is reason to believe that the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

When the solicitation is cancelled or when all bids or proposals are rejected, all vendors who submitted bids or proposals shall be sent a notice informing them of the cancellation or rejection.

e) Documentation

The reasons for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

f) Rejection of Individual Bids or Proposals

General. This subsection (f) applies to rejections of individual bids or proposals in whole or in part.
Notice in Solicitation. Each solicitation issued by the OAG shall provide that any bid or proposal may be rejected in whole or in part when in the best interest of the State as provided in this subsection (f).
Reasons for Rejection.

Reasons for rejecting a bid or proposal may include, but are not limited to:

A) the business that submitted the bid or proposal is nonresponsible as determined under Section 1300.2046 of this Part;

B) the bid or proposal is not responsive, that is, it does not conform in all material respects to the solicitation;

C) the proposal ultimately (that is, after any opportunity has passed for altering or clarifying the proposal) fails to meet the announced requirements of the OAG in some material respect;

E) the proposed price is clearly unreasonable.

Notice of Rejection. Upon request, unsuccessful bidders or offerors shall be advised of the reasons for rejection.

g) Disposition of Bids or Proposals

When bids or proposals are rejected, or a solicitation cancelled after bids or proposals are received, the bids or proposals that have been opened shall be retained in the procurement file, or if unopened, returned to the bidders or offerors upon request, or otherwise disposed of.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2043 Suppliers

a) The OAG may contract with any qualified source of supply, but must give preference to Directed Sources, and should consider the following Special Sources.

b) Directed Sources − State-Produced Supplies or Service

Correctional Industries. The CPO, in conjunction with the Department of Corrections, shall determine which supplies produced or services performed, if any, by Correctional Industries must be purchased by the OAG. The CPO shall determine whether such supplies or services meet the OAG's requirements and whether the price represents a fair market value for such supplies or services.
Central Services. Supplies and services available from the program operations of the Department of Central Management Services will be utilized unless the CPO authorizes procurement from other sources.

c) Special Sources

Prior to any equipment procurement, the OAG will consider property available from the State and Federal Surplus Warehouses that are under the jurisdiction of the Department of Central Management Services.
Various goods and services are available from qualified not-for-profit agencies for persons with significant disabilities, and procurement from the not-for-profit agency's certified work centers is encouraged. Notice and competition is not required pursuant to Section 45-35 of the Code. Information regarding qualified work centers will be obtained from DCMS.
Various goods and services are available from State Agencies and other governmental units. These may be procured without notice and competition.

History

Source: Amended at 42 Ill. Reg. 13585, effective June 29, 2018

44 Ill. Adm. Code 1300.2044 Vendor List/Required Use

a) The CPO may maintain a list of vendors interested in doing business with the OAG. Lists of names and addresses of bidders shall be available for public inspection.

c) Invitations for Bids and other solicitations will be sent to vendors on the vendor list for goods or services in question, except in the following cases:

The vendor does not sell the particular commodity or equipment;
When the number of vendors for a procurement classification is of such magnitude that optimum prices may reasonably be expected without soliciting the entire vendor list, the OAG may, if it determines that the best interest of the State would be served, rotate the selection from the list on any equitable basis; or
The IFB may be confined to bidders in a limited geographical service area, when the OAG determines that the best interests of the State will be served by so doing (example: purchases of ready-mix concrete, perishables, and equipment requiring periodic service).

d) The Procurement Officer in the OAG may alternatively refer to vendor lists maintained by DCMS.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2045 Prequalification

a) General

The CPO may require that vendors be prequalified as a condition of being placed on the bid list. If so, vendors shall be given an opportunity to prequalify at least one time per year. The opportunity to prequalify, and whether prequalification will be a condition of bidding or being awarded a contract, shall be announced in the Bulletin.
The fact that a prospective vendor has been prequalified does not necessarily represent a finding of responsibility for a particular procurement.
Except in the case of professional and artistic services, distribution of and responses to the solicitation may be limited to prequalified vendors and award of a contract may be denied because a vendor was not prequalified.

b) Professional and Artistic Services

When the services are needed on a recurring basis, the CPO shall actively solicit persons engaged in providing such services to submit annual statements of qualifications in a prescribed format that shall include the following information:

technical education and training;
general or special experience, certifications, licenses, and memberships in professional associations, societies, or boards;
an expression of interest in providing a particular professional or artistic service; and
any other pertinent information requested by the Procurement Officer.

c) Qualified Products Lists

Qualified products lists are treated in Section 1300.2050 (Specifications and Samples) of this Part.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2046 Responsibility

a) Application

b) Standards of Responsibility

Standards. Factors to be considered in determining whether the standard of responsibility has been met include whether a prospective vendor:

A) has available the appropriate financial, material, equipment, facility, and personnel resources and expertise (or the ability to obtain same) necessary to indicate its capability to meet all contractual requirements;

B) is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments;

D) has a satisfactory record of integrity and business ethics. Vendors who are under investigation or indictment for criminal or civil actions that bear on the particular procurement or that would make contracting with that vendor undesirable may be declared not responsible for the particular procurement;

E) is qualified legally to contract with the State;

F) has supplied all necessary information in connection with the inquiry concerning responsibility;

G) has a current Public Contracts number from the Illinois Department of Human Rights pursuant to 44 Ill. Adm. Code 250.210, if required. Proof of application prior to opening of bids or proposals will be sufficient for an initial determination; and

H) pays prevailing wages, if required by law.

Information Pertaining to Responsibility. The prospective vendor shall supply information requested by the Procurement Officer concerning the responsibility of such vendor. The State may supplement this information from other sources and may require additional documentation at any time. If such vendor fails to supply the requested information, the Procurement Officer shall base the determination of responsibility upon any available information, or may find the prospective vendor nonresponsible.

c) Ability to Meet Standards

The prospective vendor may demonstrate the availability of necessary financing, equipment, facilities, expertise, and personnel by submitting upon request:

evidence that such vendor possesses such necessary items;
acceptable plans to subcontract for such necessary items; or
a documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items.

d) Duty Concerning Responsibility

Before awarding a contract, the Procurement Officer must be satisfied that the prospective vendor is responsible. Responsibility can be proven until time of award or execution of contract, whichever is later.

e) Written Determination of Nonresponsibility Required

If a vendor who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the Procurement Officer. A copy of the determination shall be sent promptly to the nonresponsible vendor. The final determination shall be made part of the procurement file.

f) Vendors not having a history of performance may be considered responsible if no other disqualifying factors exist. A bond or other security may be required for such bidders.

g) Vendors who are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing nonresponsible vendor will be declared nonresponsible unless the new organization can prove it was not set up for the purpose of avoiding an earlier declaration of nonresponsibility.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2047 Security Requirements

a) The Procurement Officer may require that a vendor furnish bid, proposal, or performance security on OAG contracts. Whenever security is required, except as provided herein, the procurement document will clearly indicate the type and amount of security.

c) Unless the amount is set by law, the Procurement Officer will determine the amount, in dollars or percentage of contract price, that will adequately protect the State's interests.

e) Permissive/Mandatory Security

Bid or proposal security is permissive on any contract but is not appropriate on emergency or sole source procurements.
Performance security is permissive on any contract and is recommended on contracts calling for advance payment.
Performance security is required on all public works contracts.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2050 Specifications and Samples

a) Responsibilities Regarding Specifications

The Procurement Officer is authorized to write specifications for procurements for the OAG.
When a written determination is made by the Procurement Officer authorized to prepare the specifications that there will be no substantial conflict of interest involved and it is otherwise in the best interest of the State, a contract to prepare specifications for OAG use in procurement of supplies or services may be entered into provided the Procurement Officer retains the authority to finally approve the specifications.
If a specification for general or common use or a qualified products list exists for an item to be procured under Section 20-20 of the Code (Small Purchases), it shall be used except as otherwise authorized by the CPO. If no such specification exists, the Procurement Officer is hereby granted the authority to prepare specifications for use in such purchases. In an emergency under Section 20-30 of the Code (Emergency Procurements), any necessary specification may be utilized by the Procurement Officer without regard to the provisions of this Subpart.

b) Procedures for the Development of Specifications

If a specification for a common or general use item has been developed or a qualified products list has been developed in accordance with this Section for a particular supply or service, it shall be used unless the CPO authorizes use of another specification.
All procurements shall be based on specifications that accurately reflect the OAG's needs. Specifications shall clearly and precisely describe the salient technical or performance requirements.
Specifications shall not include restrictions that do not significantly affect the technical requirements or performance requirements, or other legitimate OAG needs. All specifications shall be written in such a manner as to describe the requirements to be met, without having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.
Any specifications or standards adopted by business, industry, not-for-profit organization or governmental unit may be adopted by reference.
A specification may provide alternate descriptions where two or more design, functional, or performance criteria will satisfactorily meet the OAG's requirements.

c) Brand Name or Equal Specification

Brand name or equal specifications may be used when the Procurement Officer determines in writing that:

A) no specification for a common or general use specification or qualified products list is available;

B) time does not permit the preparation of another form of specification, not including a brand name specification;

C) the nature of the product or the nature of the OAG's requirement makes use of a brand name or equal specification suitable for the procurement; or

D) use of a brand name or equal specification is in the State's best interest.

Brand name or equal specifications shall seek to designate more than one brand as "or equal", and shall further state that substantially equivalent products to those designated will be considered for award.
Required Characteristics. Unless the Procurement Officer determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics that are required.
Nonrestrictive Use of Brand Name or Equal Specifications. Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use. Burden of proof that the product is equal is on the bidder.

d) Brand Name Only Specification

Use. A brand name only specification may be used only when the Procurement Officer makes a written determination that only the identified brand name item or items will satisfy the OAG's needs. Brand name alone may be specified in order to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the Procurement Officer.
Competition. The Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made under Section 1300.2025 (Sole Source Procurement).

e) Qualified Products List

Use. A qualified products list may be developed with the approval of the Procurement Officer authorized to develop qualified products lists, when testing or examination of the supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy OAG requirements.
Solicitation. When developing a qualified products list, a representative group of potential suppliers shall be solicited in writing to submit products for testing and examination to determine acceptability for inclusion in a qualified products list. Any potential supplier, even though not solicited, may offer its products for consideration during the time allowed for testing and examination.
Testing and Confidential Data. Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements. Except as otherwise provided by law, trade secrets, test data, and similar information provided by the supplier will be kept confidential when requested in writing by the supplier.

f) Proven Products

g) OAG Required Samples

Any required samples must be submitted as instructed in the solicitation with transportation prepaid by the vendor. Each sample must be labeled with the vendor's name, address and a means of matching the sample with the applicable bid or proposal.
Any sample submitted must be representative of the item that would be delivered if a contract were awarded for that item. Samples submitted by a successful vendor will be retained to check continuing quality. Submission of samples will not limit the OAG's right to require adherence to specifications.
No payment will be made for OAG Required Samples. Samples not destroyed or consumed by examination or testing will be returned upon request at vendor's expense. The request must be made at time of submission with return collect or prepayment provisions and instructions for return of the samples.

h) Product Demonstration

Any vendor may request time and space to demonstrate a product or service. Agreement to allow such demonstration will be solely at the OAG's discretion and will not entitle the bidder to a contract nor shall payment for the demonstration be allowed unless a written contract had been executed prior to the demonstration.

i) Specifications Prepared by Other Than OAG Personnel

Specifications may be prepared by other than OAG personnel, including, but not limited to, other State personnel, consultants, architects, engineers, designers, and other drafters of specifications for public contracts. Contracts for the preparation of specifications by other than OAG personnel shall require the specification writer to adhere to the Code and OAG requirements.
The person who prepared the specifications shall not submit a bid or proposal to meet the procurement need unless the Procurement Officer determines in writing that it would be in the best interest to accept such a bid or proposal from that person and a notice to that effect is provided to the CPO and is published in the Bulletin. The CPO may disapprove that determination.

j) Pre-solicitation Assistance/Specifications Prepared by Other Than OAG Personnel

Prior to issuing a solicitation, a Purchasing Officer may issue an RFP to obtain services of any person or business to conduct research, analyze requirements or provide general design or other assistance to help the OAG develop its procurement strategy, specifications and documents and to identify and address other related needs. No services can be obtained to assist the OAG in reviewing, drafting or preparing an RFP or to provide similar assistance.
Notice. An RFP shall be published in the Bulletin for at least 7 calendar days. All information received in response to an RFP shall be published in the Bulletin for at least 7 calendar days.
The RFP shall contain at least the following:

A) A statement that the OAG is issuing an RFP;

B) A brief description of the office's need; and

C) A statement that the RFP is not a solicitation.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.2055 Types of Contracts

a) Scope of Rule

This Section contains descriptions of types of contracts and limitations as to when they should be utilized by the OAG in its procurements.

b) Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

The cost-plus-a-percentage-of-cost contract is prohibited by Section 20-55 (Types of Contracts) of the Illinois Procurement Code and by this Part. This type of contracting may not be used alone or in conjunction with an authorized type of contract.

c) Types of Fixed-Price Contracts

Firm Fixed-Price Contract. A firm fixed-priced contract provides a price that is not subject to adjustment because of variations in the contractor's cost of performing the work specified in the contract.
Fixed-Price Contract with Price Adjustment.

A) A fixed-price contract with price adjustment provides for variation in the contract price under special conditions defined in the contract, other than customary provisions authorizing price adjustments due to modifications to the work. The formula or other basis by which the adjustment in contractor price can be made shall be specified in the solicitation and the resulting contract. Adjustment allowed may be upward or downward only, or both upward and downward. Examples of conditions under which adjustments may be provided in fixed-price contracts are:

i) changes in the contractor's labor agreement rates as applied to industry or areawide (such as are frequently found in State contracts for the purchase of coal);

ii) changes due to rapid and substantial price fluctuations, which can be related to an accepted index (such as contracts for gasoline, heating oils, and dental gold alloy); and

iii) in requirement contracts (subsection (g)(3) of this Section) when a general price change applicable to all customers occurs, or when a general price change alters the base price (such as a change in a manufacturer's published price list or posted price to which a fixed discount is applied pursuant to the contract to determine the contract price).

B) If the contract permits unilateral action by the contractor to bring about the condition under which a price increase may occur, the OAG shall have the right to reject the price increase and terminate without cost the future performance of the contract.

d) Cost-Reimbursement Contracts

Determination Prior to Use

A) A cost-reimbursement type contract may be used only when the Procurement Officer determines in writing that such a contract is likely to be less costly to the OAG than any other type or that it is impracticable to obtain otherwise the supplies, services, or construction.

B) Reimbursement of travel expenses in accordance with applicable travel control board regulations is authorized without further determinations.

Cost Contract. A cost contract provides that the contractor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee.
Cost-Plus-Fixed-Fee Contract. This is a cost-reimbursement type contract that provides for payment to the contractor of an agreed fixed fee in addition to reimbursement of allowable incurred costs. The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for such work. Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed. The fee is subject to adjustment only if the contract is modified to provide for an increase or decrease in the scope of work specified in the contract. The cost-plus-fixed-fee contract can be either a Completion Form or Term Form.
Cost Incentive Contracts

B) Fixed-Price Cost-Incentive Contract. In a fixed-price cost-incentive contract, the parties establish at the outset a target cost, a target profit (that is, the profit that will be paid if the actual cost of performance equals the target cost), a formula that provides a percentage increase or decrease of the target profit depending on whether the actual cost of performance is less than or exceeds the target cost, and a ceiling price. After performance of the contract, the actual cost of performance is arrived at based on the total incurred allowable costs as provided in the contract. The final contract price is then established in accordance with the formula using the actual cost of performance. The final contract price may not exceed the ceiling price. The contractor is obligated to complete performance of the contract, and, if actual costs exceed the ceiling price, the contractor will suffer the loss.

C) Cost-Reimbursement Contract with Cost-Incentive Fee. In a cost-reimbursement contract with cost-incentive fee, the parties establish at the outset a target cost; a target fee; a formula for increase or decrease of fee depending on whether actual cost of performance is less than or exceeds the target cost, with maximum and minimum fee limitations; and a cost ceiling that represents the maximum amount that the OAG is obligated to reimburse the contractor. The contractor continues performance until the work is complete or costs reach the ceiling specified in the contract, including any modification thereof, whichever first occurs. After performance is complete or costs reach the ceiling, the total incurred, allowable costs reimbursed as provided in the contract are applied to the formula to establish the incentive fee payable to the contractor.

e) Performance Incentive Contracts

In a performance incentive contract, the parties establish at the outset a pricing basis for the contract, performance goals, and a formula that varies the profit or the fee if the specified performance goals are exceeded or not met. For example, early completion may entitle the contractor to a bonus, while late completion may entitle the OAG to a price decrease.

f) Time and Materials Contracts; Labor Hour Contracts

Time and materials contracts provide an agreed basis for payment for materials supplied and labor performed. Labor hour contracts provide only for the payment of labor performed. Such contracts shall, to the extent possible, contain a stated ceiling or an estimate that shall not be exceeded without prior OAG approval.

g) Definite Quantity and Indefinite Quantity Contracts

Definite Quantity. A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services either at specified times or when ordered.
Indefinite Quantity. An indefinite quantity contract is a contract for an indefinite amount of supplies or services to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type. Generally an approximate quantity or the best information available as to quantity is stated in the solicitation. The contract may provide a minimum quantity the OAG is obligated to order and may also provide for a maximum quantity provision that limits the OAG's obligation to order.
Requirements Contracts. A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the OAG to order all the actual requirements of the OAG during a specified period of time.

h) Leases

A lease is a contract for the use of supplies or real property under which title will not pass to the State at any time.

i) Recovery Contracts

j) Option Provisions

Contract Provision. When a contract is to contain an option for renewal, extension, or purchase, notice of such provision shall be included in the solicitation. These options may be exercised without taking other procurement action when the option is established for exercise at the OAG's option.
Lease with Purchase Option. A purchase option in a lease may be exercised only if the lease containing the purchase option was awarded under competitive sealed bidding or competitive sealed proposals, the leased supply or facility is the only supply or facility that can meet the OAG's requirements, or if the purchase option price is less than the small purchase limit or if emergency conditions exist.

k) State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available from the State's own programs, such as Correctional Industries, may be ordered without violating any contract.

l) Extraordinary Quantities

Notwithstanding any provision in any contract, the OAG reserves the right to take bids separately if a particular quantity requirement arises that exceeds the OAG's normal needs or ordering requirements.

m) Energy Conservation

The CPO may authorize an IFB, RFP or sole source negotiation for energy conservation measures whereby the OAG would make payment based on utility cost savings. The contract shall require a clearly defined baseline of energy usage and method of measuring cost savings taking into account at least differing weather conditions, changes in facility, usage and cost of energy.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2060 Duration of Contracts - General

a) General

A multi-year contract for a term up to 10 years is authorized when determined by the CPO to be in the best interest of the OAG and the State, inclusive of proposed contract renewals.
A software license may have a term longer than 10 years, including for a perpetual term, provided the payment term is limited to no more than 10 years.
A lease for real property or capital improvements shall be in accordance with Sections 1300.4005 through 1300.4045.

b) The contractual obligation of both parties in each fiscal period succeeding the first is subject to the appropriation and availability of funds. The contract shall provide that, in the event that funds are not available for any succeeding fiscal period, the remainder of the contract shall be cancelled without penalty to, or further payment being required by, the OAG. This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

c) Conditions for Use of Multi-Year Contracts

A multi-year contract may be used when:

special production of definite quantities or the furnishing of long-term services are required to meet OAG needs; or
a multi-year contract will serve the best interests of the OAG and the State by encouraging effective competition or otherwise promoting economies in OAG procurement. The following factors are among those relevant to such a determination:

C) stabilization of the contractor's work force over a longer period of time may promote economy and consistent quality; or

D) the cost and burden of contract solicitation, award, and administration of the procurement may be reduced.

d) Multi-Year Contract Procedure

The solicitation shall state:

the proposed term;
the amount of supplies or services required for the proposed contract period;
whether bidders or offerors may submit prices for:

A) the first fiscal period only;

B) the entire time of performance only; or

C) both the first fiscal period and the entire time of performance; and

that a multi-year contract may be awarded and how award will be determined.

e) Renewals

When the original procurement specifically called for an initial term plus renewals, the renewals may be exercised without further procurement activity, provided the initial term and the exercised renewals may not exceed 10 years, the terms and conditions do not change except as provided in the contract (such as price escalations tied to an index) and the option is reserved solely to the OAG.
When the original procurement was silent as to renewals, the renewal must be within the guidelines for small, sole source or emergency procurements as set forth in the Code and this Part.
When proposals for renewal or extension involve costs of $250,000 or more, the proposals must be reviewed by the OAG PPCMB. If the OAG PPCMB raises no objection, the CPO may enter into the renewal or extension. By August 1 each year, the OAG PPCMB shall file a report with the General Assembly identifying for the previous fiscal year:

A) the proposed extensions or renewals that were filed with the OAG PPCMB and whether the OAG PPCMB objected; and

B) the contracts exempt from this subsection (e)(3).

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.2560 Prevailing Wage

a) For the following classifications and if competition exists, no bidder, offeror, potential contractor or contractor will be awarded a contract unless its employees are paid wages and benefits and are working under conditions prevalent in the location where the work is to be performed.

Public works
Printing
Janitorial cleaning, window washing, food and security guard services having a monthly contract price of $200 or more or a yearly price of $2,000 or more.

b) Prevailing wage and conditions prevalent means the hourly wage rate, overtime, holiday pay, pension, welfare, premium differential, vacation pay and other benefits received by employees and the environmental conditions under which they work.

c) Prevailing wage rates, benefits and conditions will be those in effect on the first date of the contract, provided that if the rate changes during the contract term and the amount of change is known before execution of the contract, then the contract rate will vary in like amount. If the increase cannot be determined in advance, the contract will be increased by the amount of the rate change or the agency may cancel the contract. The amount that may vary includes all components of price that are dependent on the usage rate, provided that profit shall not increase due to prevailing wage increases. If the initial prevailing wage, etc., cannot be determined prior to execution, contracts may be entered into and will remain valid for the stated term.

d) If a collective bargaining agreement is in effect governing the type of printing, janitorial cleaning, window washing, food or security guard service sought, that agreement will define minimum wages, benefits and conditions that must be paid in order for a bidder, offeror, potential contractor or contractor to be considered responsible.

e) For Public Works, location means the county where the physical work upon public works is performed, except that if there is not available in the county a sufficient number of competent skilled laborers, workers and mechanics to construct the public works efficiently and properly, "locality" includes any other county nearest the one in which the work or construction is to be performed and from which such persons may be obtained in sufficient numbers to perform the work.

f) For Printing Contracts, location means one of the following areas:

Cook County
Boone, Bureau, Carroll, Champaign, DeKalb, DeWitt, DuPage, Ford, Fulton, Grundy, Hancock, Henderson, Henry, Iroquois, Jo Daviess, Kane, Kankakee, Kendall, Knox, Lake, LaSalle, Lee, Livingston, Logan, Marshall, Mason, McDonough, McHenry, McLean, Mercer, Ogle, Peoria, Piatt, Putnam, Rock Island, Schuyler, Stark, Stephenson, Tazewell, Vermilion, Warren, Whiteside, Will, Winnebago, Woodford.
Adams, Alexander, Bond, Brown, Calhoun, Cass, Christian, Clark, Clay, Clinton, Coles, Crawford, Cumberland, Douglas, Edgar, Edwards, Effingham, Fayette, Franklin, Gallatin, Greene, Hamilton, Hardin, Jackson, Jasper, Jefferson, Jersey, Johnson, Lawrence, Macon, Macoupin, Madison, Marion, Massac, Menard, Monroe, Montgomery, Morgan, Moultrie, Perry, Pike, Pope, Pulaski, Randolph, Richland, Saline, Sangamon, Scott, Shelby, St. Clair, Union, Wabash, Washington, Wayne, White, Williamson.
Where the printing is performed in a plant outside the jurisdiction of this State, it shall be deemed produced in the Illinois locality in which delivery of the printing ordered is required to be made. When the printing is required to be delivered to more than one Illinois locality, that printing shall be deemed produced in the Illinois locality to which the largest dollar volume of printing under the contract is to be delivered.

g) For janitorial cleaning, window washing, food and security guard services, location means the county in which the work is to be performed.

h) Prevailing wages, benefits and conditions will be determined by the Director of the Illinois Department of Labor.

History

Source: Amended at 40 Ill. Reg. 3401, effective February 11, 2016

44 Ill. Adm. Code 1300.2580 Subcontractors

All competitive sealed proposals, including proposals for professional and artistic services, shall include a provision to require each offeror to identify, either in its proposal or prior to award, the identity of the subcontractors that will be used in the performance of the contract and the general type of work to be performed by these subcontractors, as well as the amounts expected to be paid to each subcontractor.

History

Source: Amended at 37 Ill. Reg. 19316, effective November 12, 2013

44 Ill. Adm. Code 1300.2800 All Costs Included

Unless otherwise allowed by the solicitation, prices quoted shall be all inclusive covering transportation, transit insurance, delivery, installation, taxes, and any other costs.

44 Ill. Adm. Code 1300.4005 Real Property Leases and Capital Improvement Leases

Except as otherwise authorized or required by law, real property leases and capital improvement leases shall be procured in accordance with Article 40 of the Code and this Part.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.4010 Renewal

The renewal or extension of leases in effect before July 1, 1998 shall be in accordance with Section 40-15 of the Code except that Section 40-15(b)(5)(ii) and (iii) shall not apply.

44 Ill. Adm. Code 1300.4015 Method of Source Selection

a) Leases shall be procured by using a Request for Information process, except as provided in subsection (b).

b) The RFI process is not required in the following circumstances.

Property of less than 10,000 square feet with rent of less than $100,000 per year.
Duration of less than one year that cannot be renewed.
Specialized space available at only one location.
Renewal or extension of leases provided that:

A) The CPO determines in writing that the renewal or extension is in the best interest of the OAG and the State;

B) The CPO submits the written determination and the renewal or extension to the OAG PPCMB;

C) The OAG PPCMB does not object in writing to the renewal or extension within 30 calendar days after its submission;

D) The CPO publishes notice of the renewal or extension in the Bulletin; and

E) The length of the lease, including renewals, does not exceed 10 years.

Leases with other governmental units may be negotiated without using the RFI process when deemed by the CPO to be in the best interest of the OAG and the State. [30 ILCS 500/40-15]

c) Leases acquired under these exceptions shall be selected and entered into by negotiation. Written summaries of all negotiations shall be maintained in lease files.

History

Source: Amended at 40 Ill. Reg. 3401, effective February 11, 2016

44 Ill. Adm. Code 1300.4020 Request for Information and Review of Proposed Leases

a) An RFI will contain at a minimum the following information:

A description of the general type of property to be leased;
The proposed use of the property;
The proposed term of the lease;
The preferred location of the property [30 ILCS 500/40-20(b)];
General information such as size of space, configuration desired and any other appropriate requirements;
The address to which responses to the RFI may be sent; and
The date on which responses are due.

b) Notice of the RFI shall be:

Published at least 14 days prior to the deadline for responding in both the Illinois Procurement Bulletin and a newspaper having general circulation in the area in which the space is being sought; and
Of an appropriate size to draw attention and shall be placed in the legal advertisement section.

c) The RFI response shall consist of written confirmation sufficient to show that the respondent can meet the minimum criteria set forth in the RFI. [30 ILCS 500/40-20(d)]

d) All responses to the RFI will be publicly opened on the announced opening date. Names of all parties submitting proposals will be made available to the public.

e) The Purchasing Officer may conduct discussions with respondents of the RFI for the purpose of clarifying the needs of the OAG and the information supplied by the respondents. [30 ILCS 500/40-20(d)]

f) On the basis of the responses to the RFI, the Purchasing Officer shall make a written determination of which RFI responses meet the minimum criteria set forth in the RFI. [30 ILCS 500/40-20(d)]

g) The Purchasing Officer will enter into negotiations with all qualified respondents for the purpose of securing a lease that is in the best interest of the State. [30 ILCS 500/40-20(d)] A written record of all negotiations will be maintained by the Attorney General.

h) The Purchasing Officer shall review all relevant information and shall recommend to the CPO which proposal should be accepted. The lease shall be reduced to writing. [30 ILCS 500/40-20(d)]

i) The OAG PPCMB shall review any proposed lease of real property of more than 10,000 square feet or any proposed lease of real property with annual rent payments of $100,000 or more. The OAG PPCMB shall have 30 calendar days to review a proposed lease. No contract may be entered into until the 30-day period has expired, unless the CPO requests in writing that the OAG PPCMB waive the period and the OAG PPCMB grants the waiver in writing. If the OAG PPCMB does not object in writing within 30 calendar days, then the proposed lease shall become effective according to its terms as submitted. [30 ILCS 500/40-20(e)]

j) The CPO will make the final award, which will be announced in the Illinois Procurement Bulletin. The lease shall be executed by all parties. One copy of the lease will be filed with the Comptroller. [30 ILCS 500/40-20(d)]

k) Should the lowest response by price not be selected, a written report of the negotiation shall be retained in the lease files and shall include the reasons for the final selection. The CPO shall publish notice, along with the reasons for such selection, in the next available volume of the Illinois Procurement Bulletin. [30 ILCS 500/40-20(d)]

l) The CPO reserves the right to reject any and all proposals and to request and evaluate "best and final" proposals. All decisions on compliance, evaluations, terms and conditions shall be made solely at the CPO's discretion and made to favor the State.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.4025 Lease Requirements

a) Length of Leases

Maximum Term. Except when a longer term is authorized by law, leases shall be for a term not to exceed 10 years inclusive of proposed contract renewals and shall include a termination option in favor of the OAG after 5 years. [30 ILCS 500/40-25(a)]
Renewal Option. Leases may include a renewal option. An option to renew may be exercised only when the CPO determines in writing that renewal is in the best interest of the State and notice of the exercise of the option is published in the next available issue of the Illinois Procurement Bulletin. [30 ILCS 500/40-25(b)]
Holdover. No lease may continue on a month-to-month or other holdover basis for a total of more than 6 months. [30 ILCS 500/40-25(d)]

b) Subject to Appropriation

All leases shall recite that they are subject to termination and cancellation in any year for which the General Assembly fails to make an appropriation to make payments under the terms of the lease. [30 ILCS 500/40-25(c)]

c) Lessor's Failure to Make Improvements

History

Source: Amended at 40 Ill. Reg. 3401, effective February 11, 2016

44 Ill. Adm. Code 1300.4045 Emergency Lease Procurements

Emergency lease procurements may be made pursuant to 44 Ill. Adm. Code 1300.2030 of this Part.

History

Source: Added at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.4500 Contracting with Businesses Owned and Controlled by Minorities, Women, and Persons with Disabilities

a) As required by Section 9 of the Attorney General Act [15 ILCS 205] and in accordance with the Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575] (Act), the Attorney General establishes the following aspirational goals for contract awards for all contracts for goods and services, excluding contracts for services relating to investigations or litigation:

At least 30% of the dollar value of OAG contracts shall be awarded to businesses owned by minorities, women, and persons with disabilities; and
Of this 30%, 10% shall be for women-owned businesses, 4% for businesses owned by persons with disabilities and not-for-profit agencies for the disabled, and the remaining 16% for other minority-owned businesses.

b) The goals established in subsection (a) may be satisfied, in whole or in part, by counting expenditures made by OAG vendors to subcontractors.

c) Upon direction of the Chief Procurement Officer after consultation with the Business Enterprise Council for Minorities, Women, and Persons with Disabilities (the Business Enterprise Council) (see Section 5 of the Act), the OAG may establish set-asides, including, but not limited to, set-asides for businesses owned by minorities, women, and persons with disabilities, and other preferred vendors certified under the Act.

d) In procuring goods and services to meet its aspirational goals, the OAG may rely on:

The list of businesses that have been certified under the Act by the Business Enterprise Council. A list of those businesses appears on the State of Illinois Commission on Equity and Inclusion's website (https://ceibep.diversitysoftware.com); or
Certifications by other certifying entities that have been accepted by the Business Enterprise Council under the Act. Businesses certified in this manner are included with the list of businesses that have been certified under the Act by the Business Enterprise Council and may be found on the State of Illinois Commission on Equity and Inclusion's website (see subsection (d)(1)).

e) The Procurement Officer may undertake the following actions to reach the goals established in subsection (a):

Focus solicitations on those vendors included on the Council's list of certified businesses or by other means;
Advertise in appropriate media;
Divide job or project requirements into smaller tasks or quantities, when economically, technically, and programmatically feasible;
Eliminate extended experience or capitalization requirements when programmatically feasible; and
Identify specific, proposed projects, purchases, or contracts as particularly appropriate for participation by businesses that are owned by minorities, women, or persons with disabilities, and establish set-asides in accordance with applicable law.

f) Those categories of contracts and expenditures exempted by the Business Enterprise Council (see 44 Ill. Adm. Code 10.22), are exempt from the contracting goals established in this Section. Additionally, the CPO may exempt specific contracts or expenditures from the goals established by this Section, prior to advertising for bids or solicitations of proposals, if the CPO has determined, based upon the best information available at the time of the determination, that there are an insufficient number of businesses owned by minorities, women, or persons with disabilities to ensure adequate competition and an expectation of reasonable prices on bids or proposals solicited for the specific contract or expenditure.

g) The CPO shall direct that information regarding the OAG's utilization of businesses owned by minorities, women, and persons with disabilities during the preceding fiscal year be posted annually on the OAG's website.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.4505 Procurement Preferences

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts.

44 Ill. Adm. Code 1300.4510 Resident Bidder Preference

a) "Illinois resident vendor" as used in this Section means a person, including a foreign corporation, duly authorized to transact business in this State and having a bona fide establishment for transacting business within this State at which it was actually transacting business on the date when any competitive solicitation for a public contract was first advertised or announced.

b) In breaking a tie, an Illinois resident vendor shall be given the award.

e) The Procurement Officer may refer to the list of states with in-state preference maintained by DCMS, which shall be considered in all procurements involving out-of-state vendors.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.4530 Correctional Industries

a) To the extent economically practicable, the Procurement Officer shall refer to, and make purchases from, the listing maintained by DCMS of goods or services available from Illinois Correctional Industries (ICI).

b) When the Procurement Officer determines that it is not economically practicable to make a purchase of goods or services from ICI, the Procurement Officer shall provide a written explanation for the determination to the OAG PPCMB no less than 7 days prior to executing a contract to obtain goods or services from a source other than ICI.

c) The Procurement Officer is authorized to procure from ICI without seeking competition or giving public notice.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.4535 Certified Work Centers for Persons with Significant Disabilities

a) The Procurement Officer shall refer to information prepared by DCMS regarding qualified not-for-profit agencies' certified work centers for persons with significant disabilities and categories of goods and services set-aside to those work centers by DCMS. To the extent practicable, the OAG will follow such set-asides.

b) Pricing Approval

While notice and competition is not required prior to contracting with a certified work center for persons with significant disabilities, prices must be reasonable. Whether a price is reasonable will be determined based upon current market prices, historical prices, prices received by other State agencies for similar goods or services, the policy of the Code to promote procurements from certified work centers, and other such relevant factors.

History

Source: Amended at 42 Ill. Reg. 13585, effective June 29, 2018

44 Ill. Adm. Code 1300.4540 Gas Mileage

a) Vehicle specifications shall require compliance with minimum gas mileage requirements established in Section 45-40 of the Code.

b) Requests for exceptions must be approved by the CPO. Requests must fully describe the circumstances necessitating a non-compliant vehicle.

c) No exception will be granted unless it is clear from the request that a non-compliant vehicle is necessary in order to carry out the functions of the OAG.

44 Ill. Adm. Code 1300.4545 Small Business

a) Set-Aside

The CPO for DCMS may determine categories of goods or service procurements that will be set-aside for small business. The Procurement Officer may contact DCMS to determine whether a particular procurement has been set-aside for small business, and if so, the OAG may honor the set-aside to the extent practicable.

b) Small Business List

The OAG may avail itself of the list of responsible vendors that meet the criteria of small business maintained by DCMS. A business that fits the definition of small on the day of bid or proposal opening will be considered small for the duration of the contract.

c) Required Use

If the Procurement Officer wishes to make a procurement covered by a set-aside designation, the solicitation must note responses are limited to those from responsible small businesses. Bids or proposals received from large businesses will be rejected as nonresponsive.

d) Withdrawal of Set-Aside

If the Procurement Officer determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the Procurement Officer shall reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question. When a small business set-aside is withdrawn, notification shall be published in the Illinois Procurement Bulletin with an explanation. After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with the limitations of the Code and this Part.

e) Criteria for Small Business

Unless the CPO provides a definition for a particular procurement that reflects industrial characteristics, a small business is one:

Independently owned and operated.
Not dominant in its field of operations. This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
With annual sales for most recently ended fiscal year no greater than:

A) $13,000,000 for wholesale business;

B) $14,000,000 for construction business; or

C) $8,000,000 for retail business.

With no more than 250 employees if a manufacturing business.

If the business is any combination of retailer, wholesaler or construction business, then the annual sales for each component may not exceed the amounts shown in subsection (e)(3). For example, a business that is both a retailer and a wholesaler may not have total sales exceeding $16,000,000, the retail component may not exceed $6,000,000 and the wholesale component may not exceed $10,000,000. If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed the number shown in subsection (e)(4).
When computing the size status of a vendor, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates shall be included. Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or when a third party or parties control or have the power to control both. In determining whether concerns are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management and contractual arrangements. However, a franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

History

Source: Amended at 40 Ill. Reg. 3401, effective February 11, 2016

44 Ill. Adm. Code 1300.5013 Conflicts of Interest

a) An individual has a direct pecuniary interest in a contract when the individual is owed a payment in conjunction with performance of a contract, including, but not limited to, finder's fees and commission payments.

b) Distributable income means the amount of income actually distributed to those entitled to receive a share of such income after a company has paid all expenses, including employee salary and bonuses, and retained earnings.

c) This Section does not apply to contracts with licensed professionals provided such contracts are competitively bid. (For purposes of this Section, "bid" means procured pursuant to the competitive procedures identified in Subpart E of this Part.)

44 Ill. Adm. Code 1300.5015 Negotiations for Future Employment

a) It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association, or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 525/50-15(a)]

b) An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an "independent contractor" is in a "continued contractual relationship" for the effective date of the contract until such time as the contract is terminated.

c) An individual who performs services pursuant to a contract and who meets the requirements of an "independent contractor" as opposed to an "employee" is in a "continual contracted relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the OAG must act to terminate, or has a definite term of at least three months.

44 Ill. Adm. Code 1300.5020 Exemptions

If the Purchasing Officer finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the Purchasing Officer shall forward to the CPO the name of the vendor and a description of the proposed contract and of the potential conflict, and shall state why an exemption should be granted. The CPO shall decide whether to refuse to allow a contract or to grant an exemption.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.5030 Revolving Door

a) Procurement Officers, Procurement Officer designees and OAG PPCMB members are subject to the revolving door provisions of the Code [30 ILCS 500/50-30].

b) Each Procurement Officer shall identify designees in writing and shall maintain the designation for a period of at least two years following the end or revocation of the designation.

c) Procurement Officer designees whose job or position descriptions are at least 51% directly related to State procurement are subject to this Section. The following activities are directly related to State procurement: drafting specifications, preparing IFBs and RFPs, evaluating responses to IFBs and RFPs, negotiating contracts and supervising any of the foregoing.

d) OAG employees and former employees are also subject to Section 5-45 of the State Officials and Employees Ethics Act [5 ILCS 430/5-45].

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.5035 Disclosure of Financial Interests and Potential Conflicts of Interest

a) Distributable income means the amount of income actually distributed to those entitled to receive a share of such income after a company has paid all expenses, including employee salary and bonuses, and retained earnings.

b) Personal Services shall be any contract for services subject to the Code including, by way of example, professional and artistic services, repair services, cleaning and guard services.

c) "Competitively bid" means a contract let pursuant to Section 20-10 of the Code.

d) The CPO may prescribe forms for the disclosure of potential conflicts of interest and financial interests of bidders or offerors required under Section 50-35 of the Code.

44 Ill. Adm. Code 1300.5037 Vendor Registration, Certification and Prohibition on Political Contributions

a) Introduction

Illinois law [10 ILCS 5/9-35 and 30 ILCS 500/20-160 and 50-37] (the statutes) restricts political contributions by vendors and affiliated entities; requires registration with the State Board of Elections (SBEL); and requires solicitation and contract certifications relative to the requirements of the law. This Section supplements requirements found in the statutes and does not excuse compliance with any of those requirements.

b) General Registration Requirements

These requirements apply to contracts, bids and proposals that are subject to the Code and this Part;

B) Bids and proposals include pending bids and proposals.

C) These requirements generally apply to a vendor whose existing State contracts have an aggregate value in excess of $50,000, whose aggregate value of bids/proposals for State contracts exceeds $50,000, or whose aggregate value of State contracts and bids/proposals exceeds $50,000.

D) This value is calculated on a calendar-year basis.

On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/proposals. Vendors must register with SBEL when the vendor determines that the value of the contracts and bids/proposals meets the threshold for registration.
An "executive employee" means:

A) the President, Chairman of the Board, or Chief Executive Officer of a business entity and any other individual that fulfills equivalent duties as the President, Chairman of the Board, or Chief Executive Officer of a business entity.

B) any employee of a business entity whose compensation is determined directly, in whole or in part, by the award or payment of contracts by a State agency to the entity employing the employee, irrespective of the employee's title or status in the business entity. For the purposes of this subsection (b)(3)(B), compensation determined directly by award or payment of contracts means a payment over and above regular salary that would not be made if it were not for the award of the contract.

c) Bids and Proposals

The CPO, or his or her designee, shall determine whether a business entity is required to register with SBEL and, if so, whether the business entity is in compliance with the registration requirements on the date the bid or proposal is due.
If the CPO determines that a business entity is required to register with SBEL and the business entity is not in compliance with the registration requirements, then the CPO shall not accept the business entity's bid or proposal.
Upon discovery of noncompliance with SBEL registration requirements, if the bidder or offeror made a good faith effort to comply with registration efforts prior to the date the bid or offer is due, the CPO may provide the bidder or offeror five business days to achieve compliance. The CPO may extend the time to prove compliance as long as necessary, in the event that there is a failure within the SBEL's registration system.

d) Contracts

A copy of the Registration Certificate must be in the procurement file as set forth in this subsection (d), unless the vendor certifies it is not required to register.

For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals exceeds $50,000, the vendor must provide the Registration Certificate and make the appropriate contract certification, if it has not already done so.
For indefinite quantity/estimated value contracts, a vendor who is otherwise not required to register shall register with SBEL when the value of orders placed pursuant to an indefinite/estimated value contract plus all other contracts and bids/proposals exceeds $50,000.
For contract amendments, if the value of the amendment, by itself or in combination with the contract being renewed plus other contracts and bids/proposals, exceeds $50,000, the vendor must provide the Registration Certificate and make the appropriate contract certification, if it has not already done so.
Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications. If any violation by the vendor is not cured within 7 days after receipt of notification of the violation, the contract is voidable by the State without penalty.
Contract certification required by the statutes shall be included in or added to each contract that must be filed with the State Comptroller pursuant to Section 20-80 of the Code and those written, two-party contracts that need not be filed with the Comptroller. The OAG may require written confirmation of the rule-imposed certification at any time.

History

Source: Amended at 42 Ill. Reg. 13585, effective June 29, 2018

44 Ill. Adm. Code 1300.5039 Communications Related to Procurement

a) Any OAG employee who receives a written or oral communication that imparts or requests material information or makes a material argument regarding potential action concerning a procurement matter, including but not limited to an application, a contract or a project, shall [30 ILCS 500/50-39] report the communication to the OAG PPCMB. The OAG PPCMB shall make each report submitted pursuant to this Section available for review within 7 days after its receipt of the report.

b) A communication must be reported if it is material, regarding potential action, relating to a procurement matter and not otherwise excluded from reporting.

Materiality

A) "Material information" is information that a reasonable person would deem important in determining his or her course of action. It is information pertaining to significant issues, including, but not limited to, price, quantity and terms of payment or performance.

B) A "material argument" is a communication that a reasonable person would believe was made for the purpose of influencing a decision relating to a procurement matter. It does not include general information about products, services or industry best practices, or response to a communication initiated by an OAG employee for the purpose of providing information to evaluate new products, trends, services or technologies.

C) In determining whether a communication is material, the OAG employee must consider:

i) whether the information conveyed is new or already known to the OAG (or repeated or restated privately) and other participants in the communication; and

ii) the likelihood that the information would influence a pending procurement matter.

A "potential action" is one that a reasonable person would believe could affect the initiation, development or outcome of a procurement matter.
"Procurement matters", unless otherwise excluded, are the processes of procuring specific goods, supplies, services, professional or artistic services, construction, leases of real property in which the OAG is the lessor or lessee, or capital improvements, and include master contracts, contracts for financing through use of installment or lease-purchase arrangements, renegotiated contracts, amendments to contracts, and change orders. Procurement matters are activities that occur during the time period beginning with the time the OAG has identified a need for procurement as determined and documented by the CPO or Purchasing Officer, and continuing through the publication of an award notice or other completion of a final procurement action, the resolution of any protests, and the expiration of any protest or OAG PPCMB review period, if applicable. Procurement matters include:

A) drafting, reviewing or preparing specifications, plans or requirements, including determining the method of source selection;

B) drafting, reviewing or preparing any IFB, RFI, RFP, sole source procurement justifications, emergency procurement justifications or selection information;

C) evaluating bids, responses and offers, other communications among members of an evaluation team and any technical advisors to the team relating to the evaluation of a procurement not yet awarded;

D) letting or awarding a contract;

E) resolving protests;

F) determining inclusion on prequalification lists or prequalification in general;

G) identifying potential conflicts of interest or voiding or allowing a contract, bid, offer or subcontract for a conflict of interest;

H) allowing a contract or subcontract voidable under Section 50-60 of the Code; and

I) approving change orders or the renewal or extension of an existing contract.

c) This Section does not apply to the following communications:

Communication made publicly in a public forum;
Communications regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter;
Communications regarding the administration and implementation of an existing contract;
Communication between an OAG employee and:

A) the Attorney General;

B) other employees of the OAG;

C) the OAG PPCMB;

D) the Office of the Executive Inspector General for the Attorney General;

E) employees of the Executive Ethics Commission [30 ILCS 500/50-39(a)]; or

F) an employee of a State agency who, through the communication, is either:

i) exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the Purchasing Officer; or

ii) exercising oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities;

Unsolicited communications providing general information about products, services or industry best practices, prior to those products or services becoming involved in a procurement matter;
Communications received in response to procurement solicitations pursuant to the Code, including, but not limited to, vendor responses to an RFI, RFP, Request for Qualifications or IFB or a small purchase, sole source or emergency solicitation, questions and answers posted to the Bulletin to supplement the procurement action. This exemption is not applicable unless the communications are made in accordance with the instructions contained in the procurement solicitation, procedures or guidelines;
Communications that are privileged, protected or confidential under law;
Communications that are part of the formal procurement process as set out by statute, rule or the solicitation, guidance or procedures, such as the posting of procurement opportunities, the process for approving a Procurement Business Case or its equivalent, fiscal approval, submission of bids, the finalizing of contract terms and conditions with an awardee or apparent awardee, and similar formal procurement process;
Communications that ask for clarification regarding a contract solicitation, so long as there is no competitive advantage to the person or business, and the question and answer, if material, are posted to the Bulletin as an addendum to the contract solicitation.

d) Notwithstanding any exemption provided in subsection (c), an OAG employee must report any communication that imparts or requests material information or makes a material argument regarding a potential action concerning a procurement matter if that communication attempts to influence through duress, coercion, or the direct or indirect offer or promise of anything of value to any person or entity in consideration for any benefit or preference in the procurement process.

e) Notwithstanding any exemption provided in subsection (c), an OAG employee must report any communication that imparts or requests material information or makes a material argument regarding a potential action concerning a procurement matter if the employee reasonably believes the communication was made for any improper purpose, including, but not limited to, providing an improper benefit, monetary or non-monetary, to any person or entity.

f) As soon as practicable, but in no event more than 30 days after receipt of the communication or the first of a series of related communications described in subsection (b), the OAG employee shall report the communication to the OAG PPCMB.

g) For purposes of this Section, "OAG employee" means:

any person employed full-time, part-time, or pursuant to a personal services contract with the OAG and whose employment duties are subject to the direction and control of the OAG with regard to the material details of how the work is to be performed;
any appointed board member of a board of the OAG; or
any other person appointed to a position in or with the OAG, regardless of whether the position is compensated.

h) For purposes of this Section, "public forum" includes any meeting that satisfies the notice requirements contained in Section 2.02 of the Open Meetings Act [5 ILCS 120/2.02], but also other public events that are advertised and generally open to the public. A meeting may be a public forum even if a reasonable fee is required. Examples include educational seminars and conferences.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.5060 Voidable Contracts

If the CPO identifies, discovers, or reasonably suspects that a false certification or inaccurate, incomplete, or misleading disclosure has been made by a contractor or a subcontractor for any of the certifications or disclosures required under Article 50 of the Code, the CPO shall notify the OAG PPCMB and provide it with a copy of the contract or other procurement document in question. If the OAG PPCMB finds evidence of a false certification or inaccurate, incomplete, or misleading disclosure, the OAG PPCMB shall provide written notice to the bidder, offeror, potential contractor, contractor or subcontractor that is identified, discovered, or reasonably suspected of making the false certification or inaccurate, incomplete, or misleading disclosure. The bidder, offeror, potential contractor, contractor or subcontractor shall have 15 days to respond in writing to the OAG PPCMB. Upon consideration, the OAG PPCMB shall recommend, in writing, whether to allow or void the contract, bid, offer, or subcontract weighing the best interest of the State of Illinois. All recommendations shall be submitted to the Attorney General, or his or her designee, for final review and to the Inspector General and the CPO.

History

Source: Amended at 40 Ill. Reg. 3401, effective February 11, 2016

44 Ill. Adm. Code 1300.5310 Concessions

Proposed concessions or leases of State property under this provision of the Code must be coordinated with the Department of Central Management Services to ensure compliance with the State Property Control Act [30 ILCS 605] and rules implementing that Act (44 Ill. Adm. Code 5000).

44 Ill. Adm. Code 1300.5510 Complaints Against Vendors or Subcontractors

a) Whenever a vendor or subcontractor fails to deliver on time or meet specifications, or for other similar causes, the OAG shall initiate a complaint to the vendor or subcontractor.

b) For relatively minor infractions, the OAG may initiate contact by telephone or in person. If not resolved by this action, a written complaint will be made.

c) If the initial complaint is not satisfactorily answered, or for serious infractions, the OAG will send a written complaint to the vendor or subcontractor detailing the problem.

d) A copy of all written complaints shall be filed with the CPO. Information regarding the resolution of the complaint shall also be filed.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.5520 Suspension

a) Application

This Section applies to all debarments or suspensions of vendors or subcontractors from consideration for award of contracts.

b) The CPO may suspend a vendor or subcontractor from doing business with the OAG, or for specific types of supplies or services. A suspension may be issued upon a showing the vendor or subcontractor violated the Code or this Part, or failed to conform to specifications or terms of delivery.

c) When the CPO finds cause exists for suspension, a notice of suspension, including a copy of such determination, shall be sent to the suspended vendor or subcontractor. Bids or proposals will not be solicited from the suspended vendor or subcontractor, and if they are received they will not be considered during the period of suspension.

e) The CPO may debar a vendor or subcontractor. Debarment is the permanent suspension of a vendor or subcontractor from doing business with the OAG. A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law. Bids or proposals will not be solicited from the debarred vendor or subcontractor, and if they are received they will not be considered.

f) The CPO shall maintain a master list of all suspensions and debarments. The master list will retain information concerning suspensions and debarments as public records. The records will be maintained for a period of at least three years following the end of the suspension or debarment. Such public information may be considered in determining responsibility.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.5530 Settlement and Resolution of Contract and Breach of Contract Controversies

a) Authority to Settle or Resolve Controversies

The Procurement Officer who established the contract shall have authority to settle and resolve controversies but the Attorney General may set limits on such authority given to the Purchasing Officer.

b) Authority of Using Agency

The OAG has the authority to accept delivery of goods or services in accordance with contract requirements as satisfactory adjustment of a complaint.

c) Substitution of Terms/Price Reduction

If the vendor proposes to make an adjustment by:

substituting an alternative specification, or
reducing the contract price by a certain amount to compensate for some failure to provide full performance under the contract,

such proposal must be referred to and approved by the Procurement Officer.

d) Cancellation for Breach of Contract

In any of the following cases the Procurement Officer shall have the right to terminate or rescind any contract entered into under this Part:

The successful bidder fails to furnish a satisfactory performance bond within the time specified;
The vendor fails to make delivery at the place or within the time specified in the contract or as ordered by the OAG;
Any goods or services provided under the contract are rejected (for example not meeting specifications, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's goods or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the goods or services promptly;
The vendor is guilty of misrepresentation (for example, misbranding of food or drugs) in connection with another contract for the sale of goods or services to the OAG such that he cannot reasonably be depended upon to fulfill his obligations as a responsible vendor under any of his contracts with the OAG;
The vendor:

A) is adjudged bankrupt or enters into a general assignment for the benefit of his creditors or receivership due to insolvency; or

B) disregards laws and ordinances, rules or instructions of a contracting officer; or

C) acts in violation of any provision of the contract or this Part;

The contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States; or
Any other breach of contract or other unlawful act by the vendor.

e) Cancellation for Fraud, Collusion, Illegality, Etc.

The OAG may cancel any contract it established if there is sufficient evidence to show that:

the contract was obtained by fraud, collusion, conspiracy, or other unlawful means; or
the contract conflicts with any statutory provision of the State of Illinois or of the United States.

f) Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the OAG may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the State of Illinois for any damages suffered by it because of the vendor's breach of contract or other unlawful act on his part on which the cancellation is based.

g) Damages

the additional cost of goods or services bought elsewhere;
cost of repeating the procurement procedure;
any expenses incurred because of delay in receipt of goods or services; and
any other damages caused by the vendor's breach of contract or unlawful act.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.5540 Violation of Law or Rule

a) Determination that Solicitation or Award Violates Law

If the CPO finds that the solicitation or proposed award is in violation of statute or this Part, the CPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if such correction may be legally accomplished.

b) Determination that Contract Violated Law or Rule

Contracts based on awards or solicitations that were in violation of statute or this Part shall be terminated at no cost to the OAG.

c) Effect of Declaring a Contract Null and Void

In all cases where a contract is voided, the OAG shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract.

44 Ill. Adm. Code 1300.5550 Protests

a) Protest Resolution by Procurement Officer

An actual or prospective bidder, offeror, or contractor that may be aggrieved in connection with a procurement may file a protest on any phase of solicitation or award, including but not limited to specifications preparation, bid solicitation, or award.

b) Complaints

Complainants should seek resolution of their complaints initially with the OAG. Complaints may be made verbally or in writing.

c) Filing of Protest

Protests shall be made in writing to the Procurement Officer, if applicable, and shall be filed within 7 days after the protester knows or should have known of the facts giving rise to the protest. A protest is considered filed when physically received by the Procurement Officer. Protests filed after the 7 day period shall not be considered. In regard to a protest regarding specifications, the protest must be received within 7 days after the date the solicitation was issued, and in any event must be received by the OAG at the designated address before the date for opening of bids or proposals.
To expedite handling of protests, the envelope should be labeled "Protest." The written protest shall include as a minimum the following:

A) the name and address of the protester;

B) appropriate identification of the procurement, and, if a contract has been awarded, its number;

C) a statement of reasons for the protest; and

D) supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated.

d) Requested Information; Time for Filing

Any additional information requested by the OAG shall be submitted within the time periods established by the requesting source in order to expedite consideration of the protest. Failure of the protesting party to comply expeditiously with a request for information by the CPO or the Purchasing Officer may result in resolution of the protest without consideration of that information.

e) Stay of Procurements During Protest

When a protest has been timely filed and before an award has been made, the Procurement Officer shall make no award of the contract until the protest has been resolved, unless the CPO makes a written determination, after consulting with the Purchasing Officer, that the award of the contract without delay is necessary to protect the interests of the State.

f) Decision by the Procurement Officer

Time for Decisions. A decision on a protest shall be made by the Procurement Officer as expeditiously as possible after receiving all relevant, requested information. If a protest is sustained, the available remedies include, but are not limited to, reversal of award and cancellation or revision of the solicitation.

g) Effect of Judicial or Administrative Proceedings

If an action concerning the protest has commenced in court, the Procurement Officer shall not act on the protest but shall refer the protest to the Chief of the General Law Bureau in the Office of the Attorney General.

History

Source: Amended at 48 Ill. Reg. 2790, effective February 7, 2024

44 Ill. Adm. Code 1300.5555 Hearings and Decisions

a) The CPO shall conduct public hearings prior to awarding contracts for sole source procurements pursuant to Section 1300.2025 and before extending emergency procurements pursuant to Section 1300.2030.

b) Notices of hearings shall be published in the Bulletin at least 14 days prior to the date of the public hearing.

All notices shall include the date, time and location of the public hearing.
Notices for sole source procurements shall include the sole source procurement justification form, a description of the item to be procured, and the intended sole source contractor.
Notices for extending emergency procurements shall include the CPO's written justification for the emergency contract and the name of the contractor.

c) A copy of the notice and all documents provided at the hearing shall be included in the subsequent Bulletin.

d) The OAG PPCMB and members of the public may present testimony at the hearings.

e) The hearings shall be held in the offices of the Attorney General or at some other convenient location readily accessible to members of the public.

f) The CPO or his or her designee shall preside over the hearings and shall issue a written determination within 14 calendar days after the conclusion of the hearing.

g) Copies of all statements and exhibits introduced at the hearings, the written determination of the CPO or designee, and a summary of the proceedings at the hearings shall be included in the appropriate procurement files.

History

Source: Added at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.6010 Supply Management and Dispositions

a) Inventory Management

Supplies shall be ordered so as to maintain the minimum inventory commensurate with ability to meet agency needs. In no event shall more than a 12-month supply be maintained in inventory. This 12-month inventory does not apply to mechanical spare parts or when a greater quantity is needed to meet minimum order quantities.

b) Annual Inventory

All warehouses and similar storage areas shall be inventoried at least annually.

c) Report of Supplies

The CPO shall be notified, at such times as that officer may prescribe, of all supplies in excess of 12-month supply.

44 Ill. Adm. Code 1300.6500 General

In an effort to make the procurement process more efficient, the State and other governmental units may agree to utilize each other's procurement contracts. Agreements between State agencies with procurement authority and other governmental units with taxing authority are governed by this Part and the Governmental Joint Purchasing Act [30 ILCS 525].

44 Ill. Adm. Code 1300.6510 Oag Use of Other Contracts

The OAG may utilize procurement contracts established by other authorized State agencies or units of government:

a) if the contract:

was established by sealed bid or sealed proposal; or
is not required by the Illinois Procurement Code to be bid;

b) if the price is reasonable;

c) if an existing contract of the OAG would not be violated;

d) if allowed by the vendor;

e) if necessary State contract terms can be added; and

f) if State legal requirements are otherwise followed.

44 Ill. Adm. Code 1300.6520 No Agency Relationship

In any joint procurement situation, the agency establishing the contract does not become the procurement agency for the other. The ordering unit must issue its own purchase order, accept its own deliveries and make its own payments.

44 Ill. Adm. Code 1300.7000 Severability

44 Ill. Adm. Code 1300.7010 Government Furnished Property

44 Ill. Adm. Code 1300.7015 Inspections

a) Inspection of Plant or Site

The OAG may enter a contractor's or subcontractor's plant or place of business to:

inspect supplies or services for acceptance by the State pursuant to the terms of a contract;
audit the books and records of any contractor or subcontractor pursuant to record and audit provisions of this Part;
investigate an action to debar or suspend a person from consideration for award of contracts pursuant to the Illinois Procurement Code;
determine whether the standards of responsibility have been met or are capable of being met; and
determine if the contract is being performed in accordance with its terms.

b) Inspection and Testing of Supplies and Services

Solicitation and Contractual Provisions. A contract may provide that the OAG or its agent may inspect supplies and services at the contractor's or subcontractor's facility and perform tests to determine whether the supplies or services conform to solicitation requirements, or, after award, to contract requirements, and are therefore acceptable. Such inspections and tests shall be conducted in accordance with the terms of the solicitation and contract.
Procedures for Trial Use and Testing. The CPO may establish operational procedures governing the testing and trial use of equipment, material, and other supplies, and the application of resulting information and data to specifications or procurements.

c) Conduct of Inspections

Inspectors. Inspections or tests shall be performed so as not to unduly delay the work of the contractor or subcontractor. No inspector other than the Procurement Officer may change any provision of the specifications or the contract without written authorization of the Procurement Officer. The presence or absence of an inspector shall not relieve the contractor or subcontractor from any requirements of the contract.
Location. When an inspection is made in the plant or place of business of a contractor or subcontractor, the contractor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.
Time. Inspection or testing of supplies and services performed at the plant or place of business of any contractor or subcontractor shall be performed at reasonable times.

d) Inspection of Construction Projects

On-site inspection of construction shall be performed in accordance with the terms of the contract.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.7020 Records and Audits

a) Retention of Books and Records

Books and records that relate to performance of an OAG contract, including subcontracts, and that support amounts charged to the OAG shall be maintained:

by a contractor, for three years from the date of final payment under the prime contract;
by a subcontractor, for three years from the date of final payment under the subcontract; and
by a contractor and subcontractor for such larger period of time as is necessary to complete any ongoing or announced audits.

b) Contract Audit

Types of Contracts Audited. The type of contract under which books and records should be audited is that in which price is based on costs or is subject to adjustment based on costs, or that in which auditing would be appropriate to assure satisfactory performance, such as a time and materials contract. Situations where an audit may be warranted include but are not limited to when a question arises in connection with:

the financial condition, integrity, and reliability of the contractor or subcontractor;
any prior audit experience;
the adequacy of the contractor's or subcontractor's accounting system;
the number or nature of invoices or reimbursement vouchers submitted by the contractor or subcontractor for payment;
the use of federal assistance funds;
the fluctuation of market prices affecting the contract; or
any other situation in which the Procurement Officer finds that such an audit is necessary for the protection of the State's best interest.

History

Source: Amended at 36 Ill. Reg. 11974, effective July 13, 2012

44 Ill. Adm. Code 1300.7025 Written Determinations

a) Preparation and Execution

Where the Illinois Procurement Code or this Part requires a written determination, the officer required to prepare the determination may delegate its preparation, but the responsibility for and the execution of the determination shall not be delegated.

b) Content

Each written determination shall set out sufficient facts, circumstances, and reasoning as will substantiate the specific determination that is made.

c) Obtaining Supporting Information

While an officer is responsible for the execution of the written determination, other State personnel, particularly technical personnel, are responsible for furnishing to the cognizant official, in an accurate and adequate fashion, the information pertinent to the determination. When requested, such information shall be furnished in writing to the cognizant official who shall have the authority to decide the final form and content of the determination and to resolve any questions or conflicts arising with respect to the determination.

d) Forms

The CPO shall prescribe methods and operational procedures to be used in preparing written determinations.

e) Retention

Each written determination shall be filed in the solicitation or contract file to which it applies, shall be retained as part of such file for so long as the file is required to be maintained, and, except as otherwise provided by law or rule, shall be open to public inspection.

44 Ill. Adm. Code 1300.7030 No Waiver of Sovereign Immunity

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.

Chapter XXI Treasurer

Part 1400 Procurement

44 Ill. Adm. Code 1400.505 Title

This Part may be cited as the Office of the Treasurer Procurement Rules.

44 Ill. Adm. Code 1400.510 Policy

All procurements by the Treasurer's office will be accomplished in a competitive, expeditious, economical and commercially reasonable manner in accordance with law, this Part, and other applicable rules.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.515 Applicability

a) This Part applies to all procurements by the Treasurer's office with a Solicitation Date of July 1, 1998 or later with the exception of those items listed in subsection (b) of Section 1-10 of the Procurement Code, which include, but are not limited to, the following:

contracts between the Treasurer's office and any federal, State, or local governmental body; [30 ILCS 500/1-10(b)(1)]
agreements for the deposit of State moneys in interest bearing accounts or the investment of State moneys under the Deposit of State Moneys Act [15 ILCS 520] or the Public Funds Investment Act [30 ILCS 235];
hiring employees, including contractual employees but not independent contractors, of the Treasurer's office;
collective bargaining agreements; [30 ILCS 500/1-10(b)(5)]
contracts approved by the Chief Legal Counsel as necessary to prepare for anticipated litigation, enforcement actions, or investigations. Anticipated litigation is legal action that may be prosecuted or defended before a court or administrative body and includes actions necessary to guard against litigation and prepare for and conduct effective legal prosecution or defense, including, but not limited to, the retention of counsel, investigators, expert witnesses and court reporters. This Section is applicable to equipment or services necessary in the furtherance of covert activities lawfully conducted by the Treasurer's Office; [30 ILCS 500/1-10(b)(7)]
grants, except that grant agreements shall be filed with the Comptroller as required by Section 20-80 of the Illinois Procurement Code [30 ILCS 500]. [30 ILCS 500/1-10(b)(2)]

b) The terms and conditions and the rights and obligations under contracts resulting from procurements with a Solicitation Date that is earlier than the effective date of this Part will not be impaired.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.520 Definition of Terms

Each term listed in this Section has the meaning below unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in those Sections.

"Award" – The determination that a particular vendor has been selected from among other potential vendors to enter into negotiations for the purpose of finalizing a contract.

"Bid" − A response to an Invitation for Bids.

"Bidder" − The person or entity submitting a bid.

"Brand Name or Equal Specification" − A specification that uses one or more manufacturer's names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet Treasurer's office requirements, and that allows the submission of equivalent products.

"Brand Name Specification" − A specification limited to one or more items by manufacturer's names or catalogue numbers.

"Code" means the Illinois Procurement Code [30 ILCS 500].

"Chief Legal Counsel" − An attorney for the Treasurer's office who reports directly to the Chief of Staff and is primarily responsible for the legal functioning of the Treasurer's office.

"Chief of Staff" − The Chief of Staff for the Treasurer's office.

"Chief Procurement Officer" − The employee of the Treasurer's office who is appointed by the Treasurer to be primarily responsible for the procurement of all goods and services by the Treasurer's office.

"Contract" − All types of State agreements, regardless of what they may be called:

for the procurement, use or disposal of supplies, services, professional or artistic services, or construction; or for leases of real property when the State is the lessee; or for capital improvements; and

including renewals, master contracts, contracts for financing through use of installment or lease-purchase arrangements, renegotiated contracts, amendments to contracts, and change orders. [30 ILCS 500/1-15.30]

The term contract, as used in this Part, does not include: supplies or services the terms governing which are established by tariff of the Illinois Commerce Commission or the Federal Communications Commission and for which there is no authorized competition, bonds, or contracts related to bonds issued by or on behalf of a State agency when the contractor or vendor is neither selected nor paid by the Treasurer's office.

"Contract Award" − Except as otherwise defined in this Part for specific categories of procurements, the day that a Notice of Award is posted on the Treasurer's website, confirming that a particular vendor has been selected from among other potential vendors to receive a contract, subject to the successful completion of final negotiations.

"Contractor" or "Vendor" − The terms contractor and vendor are used interchangeably for purposes of this Part. When appropriate, the term "vendor" shall also include subcontractors.

"Day" − Calendar day as opposed to business day. In computing any period of time, the day of the event from which the designated period of time begins to run is not included, but the last day of the period is included unless it is a Saturday, Sunday, or a State holiday, in which event the period runs to the end of the next business day.

"Deputy Treasurer" – An individual with the title Deputy Treasurer, appointed by the Treasurer, who reports directly to the Treasurer.

"Emergency Statement" – The statement filed setting forth the actual or estimated amount expended, the name of the contractor involved, and the conditions and circumstances requiring the emergency procurement.

"Invitation for Bids" or "IFB" − A document prepared and distributed by the Treasurer's office soliciting bids for the provision of goods or services to the Treasurer's office.

"Multiple Award" − An award that is made to 2 or more bidders or offerors for similar supplies, services, or construction-related services. [30 ILCS 500/1-15.48]

"Offer" − A bid, proposal, or response solicited by the Treasurer's office.

"Offeror" − The person or entity submitting a bid, proposal or response solicited by the Treasurer's office.

"Procurement Review Board" − A board composed of the Chief of Staff, the Chief Legal Counsel, and the Deputy Treasurer for the Treasurer's office. Where one of the above positions is vacant, designees may be appointed by the following:

Chief of Staff,

Deputy Treasurer, if the Chief of Staff position is vacant, or

Chief Legal Counsel, if both Deputy Treasurer and Chief of Staff positions are vacant.

"Professional and Artistic Services" − Those services provided under contract to the Treasurer's office by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability. [30 ILCS 500/1-15.60]

"Proposal" − A response to a Request for Proposals.

"Proposer" − The person or entity submitting a proposal.

"Purchasing Officer" − One or more employees of the Treasurer's office that serve at the direction of the Chief Procurement Officer and are responsible for coordinating the procurement activity of the Treasurer's office.

"Request for Information" or "RFI" − The process of requesting information from interested parties to aid the Treasurer's office in decision making. This type of RFI is not a procurement method and will not result in a participant receiving a contract.

"Request for Information for Real Property" or "RFI-Real Property Leases" − The process of seeking proposals for leases of real property or capital improvements.

"Request for Proposals" or "RFP" − The process by which the Treasurer's office requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals for the provision of goods or services to the Treasurer's office. [30 ILCS 500/1-15.75]

"Respondent" − The person or entity submitting a response to a Request for Information or a Request for Proposals from the Treasurer's office.

"Response" − A response to a Request for Information.

"Responsible Bidder, Proposer or Respondent" − A person or entity that is capable in all respects of performing fully the contract requirements and has the integrity and reliability that will assure good faith performance.

"Responsive Bidder" − A person or entity that has submitted a bid conforming in all material respects to an Invitation for Bids or Request for Proposal.

"Small Business Specialist" − An employee of the Treasurer's office who is responsible for assisting small businesses in submitting offers to the Treasurer's office for the provision of goods and services.

"Solicitation" − An Invitation for Bids, Request for Proposals or Request for Information.

"Solicitation Date" − The date that bids or proposals are solicited for the provision of goods or services to the Treasurer's office by communicating the solicitation orally, depositing the solicitation in the U.S. Mail or posting the solicitation electronically, whichever occurs first.

"Specification" − Any description of the physical, functional or performance characteristics or of the nature of a supply, a service, or construction items. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply, a service, or construction item for delivery. [30 ILCS 500/1-15.95]

"Subcontract" means a contract between a person and a person who has a contract subject to this Part, pursuant to which the subcontractor provides to the contractor, or, if the contract price exceeds the small purchase maximum then in effect pursuant to Section 1400.2020(a), another subcontractor, some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency. For purposes of this Part, a "subcontract" does not include purchases of goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to the Code. [30 ILCS 500/1-15.107]

"Subcontractor" means a person or entity that enters into a contractual agreement with a total value that exceeds the small purchase maximum then in effect pursuant to Section 1400.2020(a) with a person or entity who has a contract subject to this Part pursuant to which the person or entity provides some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary State contract, including subleases from a lessee of a State contract. For purposes of this Part, a person or entity is not a "subcontractor" if that person only provides goods or supplies that are incidental to the performance of a contract by a person who has a contract subject to this Part. [30 ILCS 500/1-15.108]

"Treasurer's Web Site" − The Web Site of the Office of the Illinois State Treasurer at www.illinoistreasurer.gov or successor.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.525 Property Rights

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.530 Joint Purchasing

a) The Treasurer's office may, without soliciting independent bids, proposals or responses, procure goods and services from vendors selected by the Department of Central Management Services (CMS), the federal General Services Administration, or another governmental unit in accordance with a competitive selection process established pursuant to the Governmental Joint Purchasing Act [30 ILCS 525].

b) The Treasurer's office may enter into agreements to make joint purchases pursuant to the Governmental Joint Purchasing Act and may act as a lead state or a participant state. The purchases of all personal property, supplies and services under the Governmental Joint Purchasing Act, except for small purchases, shall be based on competitive solicitations. All purchases, orders or contracts shall be awarded to the lowest responsible bidder or highest-ranked offeror, taking into consideration the qualities of the articles or services supplied, their conformity with the specifications, their suitability to the requirements of the participating governmental units and the delivery terms. [30 ILCS 525/4]

c) The Treasurer's office may procure goods or services through awards made by any cooperatives and consortia approved for use by the Chief Procurement Officer or the Chief Procurement Officer for General Services. Where practicable, including where the cooperative or consortium may have made multiple awards for the same good or service, the Treasurer's office shall:

select the vendor that represents the low cost or best value for the good or service; and
maximize competition by soliciting quotes or other information where the low cost or best value is not apparent on the face of the award made by the cooperative or consortium.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.1005 Chief Procurement Officer

The Chief Procurement Officer shall ensure that all procurements of the Treasurer's office are in accordance with this Part and in the best interest of the State. The Chief Procurement Officer is responsible for the activities of the Purchasing Officers and the Small Business Specialist who serve under his or her direction and supervision.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.1010 Purchasing Officer

a) The Chief Procurement Officer, subject to the approval of the Treasurer, may appoint one or more employees under his or her direction and supervision to serve as Purchasing Officers.

b) Before making an appointment, the Chief Procurement Officer shall, among other factors, consider each individual's character and fitness and understanding of the procurement process.

44 Ill. Adm. Code 1400.1015 Small Business Specialist

a) The Chief Procurement Officer, subject to the approval of the Treasurer, may designate an employee of the Treasurer's office with experience negotiating contracts to serve as the Small Business Specialist.

b) Before making the designation, the Chief Procurement Officer shall, among other factors, consider the individual's demeanor, organizational skills, knowledge of the Treasurer's office, and awareness of the issues confronting small businesses.

44 Ill. Adm. Code 1400.1505 Publication

a) Electronic Publication

Every solicitation for bids, proposals, requests for information, or responses required under this Part must be published on the Treasurer's Web Site at least 14 calendar days before the date set in the solicitation for the opening of the bids, proposals, or responses. Every notice of intention to enter into a sole source contract must be published on the Treasurer's Web Site at least 14 calendar days before the award of the contract. All other documents required to be published under this Part must be published on the Treasurer's Web Site as soon as practicable and no later than 30 days from the date on which the document was produced. There is no fee assessed for access to the page of the Treasurer's Web Site containing procurement information.

b) Paper Publication

All documents published on the Treasurer's Web Site may be printed in a paper format and made available upon request as of the date that it is published electronically. The Treasurer's office may charge a minimal fee that does not exceed the limits established by the Treasurer's Office pursuant to the Freedom of Information Act [5 ILCS 140]. The paper publication will be available for inspection free of charge at locations in Springfield and Chicago by appointment.

c) Content of Publications

Solicitations. Every solicitation must include the following:

A) the date of the solicitation;

B) the specifications;

C) a procurement reference number if used;

D) the date, time and location of any bidders' conferences;

E) the date, time and location for making submissions;

F) method of source selection;

G) name of the Chief Procurement Officer and the Treasurer;

H) instructions on how to obtain additional information;

I) encouragement to prospective vendors to hire qualified veterans; and

J) encouragement to prospective vendors to hire qualified Illinois minorities, women, persons with disabilities and residents discharged from any Illinois adult correctional center.

Notices of Contract Awarded. Every notice of contract awarded must contain the following information:

A) the name of the vendor selected for the award;

B) a brief description of what the vendor will do or provide;

C) the contract amount, which may be an amount not-to-exceed, along with the applicable rate and unit of measurement of the goods, supplies or services;

D) the number of unsuccessful vendors;

E) the date the solicitation was first published;

F) the date, time and location for making submissions that led to the contract award;

G) name of the Chief Procurement Officer and the Treasurer; and

H) instructions on how to obtain additional information.

Notices of Cancellation or Rejection. The notices of cancellation of a solicitation or rejection of offers must:

A) identify the solicitation;

B) briefly explain the reason for the cancellation or rejection; and

C) when appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurement of similar goods or services.

If an award to other than the lowest responsive and responsible bidder results pursuant to Section 20-10(g) of the Code, the notice of award must include a written explanation containing the following:

A) a description of the Treasurer's office's needs;

B) a determination that the anticipated cost will be fair and reasonable;

C) a listing of all responsible and responsive bidders; and

D) the name of the bidder selected, the total contract price, and the reasons for selecting that bidder.

Other Publications. All other publications required by this Part must contain any and all information that is required by this Part.
Publicizing Award

Successful bidders shall be notified of award and that notification may be in the form of a letter, purchase order or other clear communication. Notice of award shall be issued by either paper or electronic means to all offerors submitting responses to the solicitation.

Retention of Publication Information

Information published on the Treasurer's Web Site may be removed from the Treasurer's Web Site after a period of one year after first publication or sooner if determined necessary by the Chief Procurement Officer, provided that a copy of that information is maintained in the appropriate procurement file maintained in accordance with the State Records Act [5 ILCS 160].

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.1510 Solicitation

In addition to publishing solicitation notices electronically and in a paper format, the Treasurer's office may directly contact prospective vendors. Direct solicitation may be oral or in writing, but care must be taken to ensure that all vendors receive the same information. At least three vendors should be contacted whenever possible.

44 Ill. Adm. Code 1400.1515 Documentation

a) Minutes

Minutes of all meetings of the Procurement Review Board will be created and made available for inspection and copying.

b) Procurement File

All official procurement records, notices, contracts, written determinations, minutes, forms, and any other documents required under this Part must be made part of the procurement file maintained by the Chief Procurement Officer. The procurement file must be open to inspection and copying under conditions established by the Chief Procurement Officer and in compliance with the Freedom of Information Act (FOIA).

c) Contract Filing

Filing of contracts with the Comptroller must be done in accordance with Section 20-80 of the Illinois Procurement Code [30 ILCS 500] and any rules promulgated by the Comptroller.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.2005 Competitive Sealed Bidding

a) Application

b) The Invitation for Bids

Use. The Invitation for Bids is used to initiate a competitive sealed bid procurement.
Content. The Invitation for Bids must include, at a minimum, the following:

B) the specification, evaluation factors, delivery or performance schedule, and any inspection and acceptance requirements as are not included in the specification; and

C) the contract terms and conditions, including warranty, collateralization, bonding or other security requirements, as applicable.

Incorporation by Reference. The Invitation for Bids may incorporate documents by reference if the Invitation for Bids specifies where the documents can be obtained.
Publication and Documentation of the Invitation for Bids. The Invitation for Bids must be published as provided in Section 1400.1505 and made a part of the procurement file.

c) Optional Bid Requirements

Bid Form. The Invitation for Bids may provide a form which includes a space in which the bid price may be inserted and which the bidder must sign and submit along with all other necessary submissions.
Bid Samples and Descriptive Literature.

A) Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

B) Unsolicited bid samples or descriptive literature submitted at the bidder's risk may not be examined or tested, will not be deemed to vary any of the provisions of the Invitation for Bids, and may not be utilized by the vendor to contest a decision or understanding with the Treasurer's office.

d) Prequalification

The Chief Procurement Officer may require that vendors be prequalified as a condition of being placed on the bid list. Any bid lists developed will be updated by June 30 of each year. Vendors will be given an opportunity to prequalify prior to each update of the list. The opportunity to prequalify and whether prequalification will be a condition of being awarded a contract must be published as provided in Section 1400.1505.
The fact that a prospective vendor has been prequalified does not necessarily represent a finding of responsibility for a particular procurement.
Distribution of and responses to the solicitation may be limited to prequalified vendors and award of a contract may be denied because a vendor was not prequalified.

e) Bidders' Conferences

Bidders' conferences may be conducted to enhance understanding of the procurement requirements. The conferences must be announced to all prospective bidders known to have received an Invitation for Bids. The conference may be designated as attendance mandatory or attendance optional. The conference must be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Any questions posed in a bidders' conference shall be subsequently submitted in writing and, along with the answers, shall be published on the Treasurer's Web Site as provided in Section 1400.1505. Nothing stated in the bidders' conference changes the Invitation for Bids unless a change is made by written amendment to the Invitation for Bids. The Chief Procurement Officer shall cause a listing of all attendees at a bidders' conference to be prepared and made a part of the procurement file.

f) Amendments to Invitations for Bids

Form. Amendments to Invitations for Bids must be identified and must require that the bidder acknowledge receipt of all amendments issued. The amendment must reference the portions of the Invitation for Bids it amends.
Distribution. Amendments must be sent to all prospective bidders known to have received an Invitation for Bids.
Timeliness. Amendments must be distributed within a reasonable time to allow prospective bidders to consider them in preparing their bids. If necessary, the Chief Procurement Officer may extend the response time in writing, or by e-mail or telephone and confirmed in writing.

g) Pre-Opening, Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the Invitation for Bids prior to the time and date set for bid opening. An e-mail modification or withdrawal, or withdrawal received by telephone prior to the time and date set for bid opening, will be effective if followed in writing.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, will be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids must be made a part of the procurement file.

h) Receipt, Opening and Recording of Bids

Receipt. Upon its receipt, each bid and modification must be recorded but not opened and must be stored in a secure place until the time and date set for bid opening. If a bid is opened in error, the file must so state.
Opening and Recording.

A) Bids and modifications must be opened publicly, in the presence of one or more witnesses, at the time, date and place designated in the Invitation for Bids. The name of each bidder, the bid price and any other information that the Chief Procurement Officer deems appropriate must be recorded.

B) The winning bid must be available for public inspection after award, along with the record of the other bids.

i) Bid Evaluation and Award

General. The contract is to be awarded to the lowest bid by a responsible and responsive bidder, unless otherwise permitted in this subsection (i). No bid may be evaluated for any requirements or criteria that are not disclosed in the Invitation for Bids.
Determination of Bidder as Responsible and Responsive. The Chief Procurement Officer shall reach the determination of whether each bidder is responsible and responsive. The determination must be conducted to determine whether each bid is acceptable and appropriate for further evaluation and not for the purpose of determining whether one bidder's product or service capability is superior to another. If any bidder is determined to be nonresponsive and/or not responsible, that determination shall be reduced to writing and made part of the procurement file.
Product Quality or Service Capability. The Chief Procurement Officer shall also evaluate and make a notation of any differences in the product quality or service capability among the responsible and responsive bidders before reaching the determination of the lowest bidder.
Determination of Lowest Responsible and Responsive Bidder. Bids must be evaluated to determine which responsible and responsive bidder offers the lowest cost to the State in accordance with the evaluation criteria in the Invitation for Bids. Only objectively measurable criteria in the Invitation for Bids may be applied in determining the lowest bidder.
Award. The Chief Procurement Officer shall award the contract to the lowest responsible and responsive bidder, unless the differences in product quality or service capability suggest that the selection of another bid is in the best interest of the State.
Price Negotiation. The Chief Procurement Officer or designee may negotiate with the low bidder to obtain a lower price for the item bid.

j) Notification, Publication and Documentation of Award

Following the award, a notice of contract must be provided to the successful bidder, published as provided in Section 1400.1505, and made a part of the procurement file. The notice of contract awarded must indicate if a bidder other than the lowest responsible and responsive bidder was selected and the basis for the selection.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.2010 Multi-Step Sealed Bidding

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.2015 Competitive Sealed Proposals

a) Supplies and services may be procured through the competitive sealed proposal method of source selection, on a case-by-case basis, when it is determined by the Chief Procurement Officer that competitive sealed bidding is either not practicable or advantageous to the State.

b) The types of procurements for which the competitive sealed proposals method of source selection may be used without a determination that competitive sealed bidding is either not practicable or advantageous include the following:

electronic data processing equipment, software, and services;
telecommunications equipment, software, and services;
consulting services; and
banking services.

c) Factors to be considered in determining whether competitive sealed bidding is either not practical or advantageous include the following:

the nature of the procurement does not permit an award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the specification, delivery or performance schedule, and all other terms and conditions of the Invitation for Bids;
evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, where the types of supplies or services may require the use of comparative, judgmental evaluations to evaluate them adequately, or where the type of need to be satisfied involves weighing aesthetic values to the extent that price is a secondary consideration;
whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;
whether offerors may need to be afforded the opportunity to revise their proposals, including price;
whether the award may need to be based upon a comparative evaluation, as stated in the Request for Proposals, of differing price, quality, and contractual factors in order to determine the most advantageous offering to the Treasurer's office. Quality factors include technical and performance capability and the content of the technical proposal; and
it is otherwise not advantageous to the State, even though practicable, to use competitive sealed bidding.

d) Prequalification

The Chief Procurement Officer may require that vendors are prequalified in the manner described in Section 1400.2005 for competitive sealed bidding.

e) Request for Proposals

Solicitation. Proposals must be solicited through a Request for Proposals that must contain the following information:

A) A requirement that proposals are submitted in two parts. The first part should cover all items except price and the second part should cover price.

B) A statement that discussions may be conducted with offerors who submit proposals determined to be reasonably capable of being selected for award, but that proposals may be accepted without a discussion.

C) A statement of when and how price should be submitted.

Publication and Documentation of the Request for Proposals. The Request for Proposals must be published as provided in Section 1400.1505 and made part of the procurement file.

f) Receipt, Opening and Recording of Proposals

The date and time of receipt of proposals and modifications must be recorded upon receipt, but the proposal and modifications must not be opened and shall be held in a secure place until the established due date. Proposals must be opened publicly in the presence of at least one witness at the time and place designated in the Request for Proposals, but proposals must be opened in a manner to avoid disclosure of their contents to competing offerors. A record of proposals must be prepared and must be open for inspection after contract is awarded. The record of proposals must include for all proposals the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service item offered. The record of proposals must be made part of the procurement file and be open to public inspection after award of the contract.

g) Evaluation of Proposals

Evaluation Factors in the Request for Proposals. The RFP must state all of the evaluation factors, including price, and their relative importance. All evaluation factors stated will be considered equally unless otherwise indicated in the RFP.
Evaluation. The evaluation must be based on the evaluation factors in the RFP. Factors not specified in the RFP must not be considered. Numerical rating systems may be used but are not required. The first part of all proposals covering items other than price must be evaluated and ranked independently of the second part of all proposals.

h) Proposal Discussions with Individual Offerors

Offerors may be given a fair and equal opportunity to discuss their proposals.
Purposes of Discussions. Discussions are held to:

A) promote understanding of the Treasurer's office requirements and the offerors' proposals; and

B) facilitate arriving at a contract that is most advantageous to the State taking into consideration price and the other evaluation factors in the Request for Proposals.

Clarification of the Request for Proposals. If during discussions there is a need for any substantial clarification of, or change in, the Request for Proposals, the Request for Proposals must be amended to incorporate the clarification or change. Any substantial oral clarification of a proposal must be reduced to writing by the offeror.
Best and Final Offers. The Chief Procurement Officer may request best and final offers with a common date and time for submission of the offers. The Chief Procurement Officer, or his or her designee, may conduct additional discussions or change the Treasurer's office requirements and require another submission of best and final offers. If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediately previous offer will be construed as its best and final offer.
Disclosure of Information. In conducting discussions there must be no disclosure of any information derived from proposals submitted by competing offerors. Any other information that is disclosed to any offeror must be provided to all competing offerors.

i) Award

Determination. The Chief Procurement Officer must make the award in accordance with a written determination showing the basis on which the award was found to be the most advantageous to the State, based on the Request for Proposals.
Notification, Publication and Documentation of the Award. The successful offeror will be promptly notified of the award. The notification of the award and the written determination must be published as provided in Section 1400.1505 and made part of the procurement file.
Unsuccessful offerors may be allowed a debriefing when determined by the Chief Procurement Officer to be in the best interests of the State.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.2020 Small Purchases

a) Application

Any individual procurement of supplies or services that does not exceed $100,000 may, at the discretion of the Chief Procurement Officer, be made without notice, competition, publication, or use of any prescribed method of source selection. Each July 1 the small purchase maximum shall be subject to the annual cost of living increases set forth in subsection (b). Procurements of less than $100,000 for professional and artistic services, and that have a nonrenewable term of one year or less, may, at the discretion of the Chief Procurement Officer, be made without advance notice, competition or use of any prescribed method of source selection.

b) Adjustment

The small purchase maximums may be adjusted for inflation as determined by the Consumer Price Index for All Urban Consumers as determined by the United States Department of Labor and rounded to the nearest $100. In determining the annual small purchase maximums, the CPO may rely upon a published adjustment of the small purchase limits announced by the Chief Procurement Office for General Services pursuant to the procedure found at 44 Ill. Adm. Code 1.2020.

c) In determining whether a contract is under the limit, the value of the contract for the full term and any optional renewals, as well as the stated value of the goods or services plus any optional goods and services, determined in good faith, must be utilized. Where the term is calculated month-to-month or in a similar fashion, the amount must be calculated for a 12-month period.

d) Procurement requirements must not be artificially divided to avoid using one of the other source selection methods described in this Part.

e) If, after signing the contract, the actual need is determined to be more than the limits provided in this Section, and the Chief Procurement Officer determines that reprocurement is not appropriate, the Chief Procurement Officer may follow the procedures for sole source or emergency procurement, if applicable, to obtain the additional supplies or services.

History

Source: Amended at 43 Ill. Reg. 2275, effective January 31, 2019

44 Ill. Adm. Code 1400.2025 Sole Source Procurements

a) Application

The provisions of this Section apply to procurement from a sole economically feasible source (referred to as sole source) that is above the limit for small purchases in Section 1400.2020 and does not qualify as an emergency procurement as defined in Section 1400.2030.

b) Conditions for Use of Sole Source Procurement

Sole source procurement is permissible when a good or service is available from only a single supplier or when only one supplier is deemed economically feasible. A requirement for a particular proprietary item by itself does not justify a sole source procurement if there is more than one potential bidder or offeror authorized to provide that item. The following are examples of circumstances that could necessitate sole or sole economically feasible source procurement:

compatibility of equipment, accessories, replacement parts or service is a paramount consideration;
items are needed for trial use or testing of that specific product or service;
item is for commercial resale;
noncompetitive public utility services;
item is proprietary, copyrighted or patented and the item or service is not available except from the named vendor or, where applicable, holder of the copyright or patent;
media for advertising;
art, entertainment services or athletic events;
radio and television broadcast rights;
procurements related to participation in educational, professional, research, public service activities of organizations of which the Treasurer's office is a member, professional memberships and related expenses. These procurements may include, but are not limited to, dues and membership fees, travel and lodging, and facility usage fees;
federal or State grant requires contract with named vendor;
items required by franchise agreements; and
changes to existing contracts (see subsection (c)).

c) Changes to existing contracts germane to the original contract that are necessary or desirable to complete the project, and that can be best accomplished by the contract holder, may be procured under this provision.

d) The determination as to whether a procurement may be made as a sole source must be made by the Chief Procurement Officer in writing and must include an explanation of why no other source would be suitable or acceptable. The determination must be made part of the procurement file.

e) The Chief Procurement Officer shall, having defined a sole economically feasible source, issue a notice of intent to utilize the sole source method of procurement that sets forth a description of the item to be procured and the intended sole source contractor. A notice containing the following information must be published as provided in Section 1400.1505:

name of the Chief Procurement Officer who made the determination to utilize the sole source procurement;
name of the vendor;
brief description of what the vendor will do or provide;
contract price (to the extent known); and
reason why the vendor was determined to be the sole economically feasible source.

f) If a written protest is filed by an interested party pursuant to Section 1400.4005 requesting a public hearing, then the Chief Procurement Officer shall, after posting a notice as provided in Section 1400.1505, hold a public hearing and take public testimony concerning the proposed sole source designation. If there is no protest to the Chief Procurement Officer's determination or if the Chief Procurement Officer is convinced that the sole source designation is appropriate after considering the protest, a contract may be executed with the selected sole source vendor. If a written protest is received and, after considering the protest, the Chief Procurement Officer is convinced that the sole source designation is not appropriate, the Chief Procurement Officer shall commence a competitive method of procurement unless an emergency situation exists.

g) Negotiation in Sole Source Procurement

The Chief Procurement Officer shall conduct negotiations, as appropriate, in an effort to obtain the most favorable price, delivery and other terms and conditions available for the State.

h) Maintenance of Record

The Chief Procurement Officer shall maintain a record of sole source procurements in the procurement file showing:

the vendor's name;
the amount and type of the contract; and
a listing of the goods or services procured under each contract.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.2030 Emergency Procurements

a) Applications

The provisions of this Part apply to every procurement over the small purchase limit set in Section 1400.2020 made under emergency conditions. The Chief Procurement Officer shall have the authority to make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods. An emergency condition exists when:

there exists a threat to health, safety, or collection of substantial revenues;
immediate expenditure is needed for repairs to State property in order to protect against further loss or damage to State property;
action is needed to prevent or minimize serious disruption in the operation of the Treasurer's office;
action is needed to ensure the integrity of State records;
a supplier of needed goods or services makes an announcement that gives the Chief Procurement Officer reason to determine that making a purchase immediately is in the State's best interest, including, but not limited to, an announcement of bankruptcy, going out of business, or loss of franchise;
items are available on the spot at prices that are favorable enough that good business judgment mandates a purchase;
legal services to assist the Treasurer's office in the formulation of policy, in drafting or evaluating documents, or in determining the extent of statutory authority are needed more quickly than an alternative method of procurement under this Part would allow;
escrow agent services for general obligation bonds and procurements for escrow agent services and registrar and paying agent services for college savings bonds are needed more quickly than an alternative method of procurement under this Part would allow; or
bids or proposals received in accordance with a competitive sealed bid or competitive sealed proposal method are unreasonable, noncompetitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals;
rare items, such as articles of historical value or art collections, that are available for a limited time;
the opportunity to obtain entertainment, speakers and athletic and other events or performances is available for a limited time; or
immediate action is necessary to avoid lapsing or loss of federal or donated funds.

b) Scope of Emergency Conditions

Emergency procurements must be limited to those supplies, services, or construction items necessary to meet the emergency.

c) Authority to Make Emergency Procurements

The Chief Procurement Officer may make emergency procurements when the need cannot be met through normal procurement methods, but, whenever practicable, existing contracts must be utilized.

d) Source Selection Methods

Any method of source selection, whether or not identified in this Part, may be used to conduct the procurement in emergency situations provided that, whenever practical, existing State contracts shall be utilized and competitive sources shall be considered if practical. The procedure used shall be selected to assure that the required items are procured in time to meet the emergency. As much competition as is practicable shall be obtained.

e) Filing with the Auditor General

The Chief Procurement Officer shall file an emergency statement with the Auditor General within 10 days after the contract is awarded setting forth the amount expended, the name of the contractor involved, and the conditions and circumstances requiring the emergency procurement. When only an estimate of the cost is available, the estimate should be provided in the emergency statement and the actual cost must be reported immediately after it is determined.

f) Determination, Record and Publication of Emergency Procurements

Determination. The Chief Procurement Officer shall make a written determination stating the basis for an emergency procurement and for the selection of the particular vendor. Documentation of efforts to obtain competition shall be made part of the procurement file. These determinations shall be kept in the contract file.
Record. A record of each emergency procurement must be made no later than 5 calendar days after the contract is awarded and must include the following information:

A) the vendor's name;

B) the amount and type of the contract (if only an estimate of the amount is available immediately, the record must be supplemented with the final amount once known);

C) a description of what the vendor will do or provide;

D) the reasons for using the emergency procurement method of source selection;

Emergency Contract Award

A) For purposes of an emergency, an emergency contract is awarded on the earliest of the date that:

i) the Treasurer's office communicates to a vendor to start work;

ii) publication is made on the Treasurer's website identifying the selected vendor; or

iii) the contract is signed by both parties.

B) Documentation of the contract award date shall be part of the procurement file.

The written determination and the record of the emergency procurement must be made part of the procurement file and must be published as provided in Section 1400.1505 no later than 5 calendar days after the contract is awarded.
Provided it contains all information and is published as required by this subsection (f), the emergency statement may be used to meet the requirements of this subsection.

g) Duration of Emergency Contract

The term of the emergency contract shall be limited to the time reasonably needed for a competitive procurement, not to exceed 90 days.
An emergency contract may be extended beyond 90 days if the Chief Procurement Officer determines additional time is necessary and the contract scope and duration are limited to the emergency. Prior to execution of the extension, a public hearing shall be held at which any person may present testimony.
Notice of Extension

Notice of intent to extend an emergency contract shall be published on the Treasurer's website no later than 14 days prior to a public hearing. Notice shall include at least a description of the need for the emergency extension, the contractor, and the date, time and location of the public hearing.

Hearing Procedure

Provided members of the public are allowed to present testimony and notice is provided as required in this subsection (g), the hearing need not comply with all requirements of 74 Ill. Adm. Code 730.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.2035 Procurement of Professional and Artistic Services

a) The provisions of this Section apply to the procurement of professional and artistic services with the exception of the following:

sole source procurements;
emergency procurements;
any procurement of professional and artistic services less than the small purchase threshold then in effect pursuant to Section 1400.2020(a) for a nonrenewable term of less than one year made as a small purchase; and
architect, engineering and land surveying services procured pursuant to the procedures of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

b) Written Determinations Required Prior to Request for Proposals

Prior to announcing the need for professional or artistic services, the Chief Procurement Officer shall make a written determination that explains the nature of the services and how the Chief Procurement Officer reached the determination that the services are professional or artistic. The written determination must be made part of the procurement file.

c) Professional and artistic services shall be procured using a Request for Proposals.

Contents. The RFP must be drafted or approved by the Chief Procurement Officer and must contain at least the following information:

A) the type and scope of services required;

B) a date by which proposals for the performance of the services must be submitted;

C) the type of information and data required of each offeror;

D) how the price should be presented;

E) the factors to be used in the evaluation and selection process and their relative importance (all evaluation factors stated will be considered equally unless otherwise indicated in the RFP); and

F) when practicable, a draft contract with a notice to the vendors that by submitting a response they are consenting to the terms and conditions of the draft agreement and agree to be bound by a final agreement that is substantially similar to the draft.

Evaluation. Proposals must be evaluated only on the basis of evaluation factors stated in the Request for Proposals. The relative importance of the evaluation factors will vary according to the type of services being procured. Factors may include:

A) the plan for performing the required services;

C) the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

D) a record of past performance of similar work.

Publication and Filing. The Request for Proposal must be published as provided in Section 1400.1505 and must be made part of the procurement file.

d) Bidders' Conferences

Bidders' conferences may be conducted to enhance understanding of the procurement requirements. The conference may be designated as attendance mandatory or attendance optional. The conference should be held long enough after the Request for Proposals has been issued to allow proposers to become familiar with it, but sufficiently before the opening of proposals to allow consideration of the conference results in preparing their proposals. Any questions posed in a bidders' conference shall be subsequently submitted in writing and, along with the answers, shall be published on the Treasurer's Web Site as provided in Section 1400.1505. Nothing stated in the bidders' conference changes the Request for Proposals unless a change is made by written amendment to the Request for Proposals. The Chief Procurement Officer shall cause a listing of all attendees at a bidders' conference to be prepared and made a part of the procurement file.

e) Amendments to Requests for Proposals

Form. Amendments to Requests for Proposals must be published as provided in Section 1400.1505 and must be made part of the procurement file.
Distribution. Amendments must be sent to all prospective proposers known to have received a Request for Proposal.
Timeliness. Amendments must be published within a reasonable time to allow prospective bidders to consider them in preparing their bids. If necessary, the Chief Procurement Officer may extend the response time by amending the RFP as provided for in this subsection (e)(3).

f) Receipt and Handling of Proposals

Proposals and modifications must be sent to the Chief Procurement Officer where they must be recorded upon receipt, but not opened, and held in a secure place until the established due date and time, at which time they will be opened by the Chief Procurement Officer. Proposals must not be opened publicly nor disclosed to unauthorized persons and must be opened in the presence of at least one witness. A record of proposals that includes the following must be established for all proposals: the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the services offered. The record of proposals must be open to public inspection only after award of the contract and must be made part of the procurement file at that time.

g) Discussions

Discussions Permissible. The Chief Procurement Officer shall evaluate all proposals submitted and may conduct discussions with any proposer. The purposes of the discussions are to:

A) determine in greater detail the proposer's qualifications; and

B) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach.

No Disclosure of Information. No information derived from proposals submitted by an offeror may be disclosed to any other proposer.
Best and Final Offers. The Chief Procurement Officer may request best and final offers with a common date and time for submission of the proposals. The Chief Procurement Officer may conduct additional discussions or change the specifications or other contract requirements and require another submission of best and final proposals. If a proposer does not submit either a notice of withdrawal or another best and final offer, the proposer's immediate previous proposal will be construed as its best and final proposal.

h) Negotiation and Award of Contract

General. The Chief Procurement Officer, in conjunction with the Chief Legal Counsel or designee, shall negotiate a contract with the best qualified proposer, based on the evaluation factors in the request for proposals, for the required services at compensation determined in writing to be fair and reasonable.
Successful Negotiation of Contract with Best-Qualified Proposer. If compensation, contract requirements, and contract documents can be agreed upon with the best-qualified proposer, the contract must be awarded to that proposer, unless the procurement is cancelled.
Failure to Negotiate Contract with Best-Qualified Offeror

A) If compensation, contract requirements, or contract documents cannot be agreed upon with the best qualified proposer, a written record stating the reasons must be made part of the procurement file and the Chief Procurement Officer shall advise that proposer of the termination of negotiations.

B) Upon failure to negotiate a contract with the best-qualified offeror, the Chief Procurement Officer may enter into negotiations with the next most qualified offeror.

Evaluation of Pricing Data

Pricing submitted for all acceptable proposals timely submitted shall be opened and ranked.

A) If the low price is submitted by the most qualified vendor, the CPO may award to that vendor.

B) If the price of the most qualified vendor is not low and if it does not exceed $100,000, the CPO may award to that vendor.

C) If the price of the best qualified vendor exceeds $100,000, the CPO must state why a vendor other than the low priced vendor was selected and that determination shall be published as provided in Section 1400.1505 and must be made part of the procurement file.

Notice of Award. Written notice of award must be promptly provided to the successful offeror, published as provided in Section 1400.1505 and made a part of the procurement file. The notice must provide, at a minimum, the following:

A) the name of the Chief Procurement Officer;

B) the successful vendor;

C) the type of services to be provided; and

D) the amount of the contract, which may be an amount not-to-exceed, along with any applicable rates.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.2040 Procurement of Real Property Leases

a) Applicability

This Section applies to all leases for real property, including office and storage space, buildings and other facilities for the Treasurer's office, with the exception of the following:

property of less than 10,000 square feet;
rent of less than $100,000 per year;
nonrenewable leases with a duration of less than one year;
specialized space available at only one location;
renewal or extension of any existing lease so long as the term of the lease, including the renewal or extension, does not exceed 10 years; or
leases with other governmental units when deemed by the Chief Procurement Officer to be in the best interest of the Treasurer's office.

b) Request for Information – Real Property Leases

Except as otherwise provided in this Section, all contracts for leases of real property must be awarded by the following Request for Information-Real Property Leases process. The RFI-Real Property Leases must include the following:

the type of property to be leased;
the proposed uses of the property;
the duration of the lease;
the preferred location of the property; and
a general description of the configuration desired.

c) Publication of Notice

Notice of the Request for Information must be published as provided in Section 1400.1505 and must also be published in a newspaper of general circulation in the community or communities where the Treasurer's office is seeking space.

d) Evaluation of Responses

The evaluation must be based on price and the ability of the respondent to meet the criteria in the Request for Information.

e) Negotiations with Individual Offerors

For the purpose of conducting negotiations, proposals must be initially classified as:

A) acceptable;

B) potentially acceptable; or

C) unacceptable, in which case the Chief Procurement Officer shall record in writing the basis for finding an offer unacceptable and make it part of the procurement file.

Negotiations will be entered into with respondents who are classified as acceptable or potentially acceptable for the purpose of securing a lease that is in the best interest of the State.
A written determination of the acceptability of each respondent and a report of the negotiations will be retained in the procurement file and will include the reasons for the final selection.

f) Award

The lease will be awarded to the respondent that the Chief Procurement Officer deems to be most capable of meeting the needs of the Treasurer's office. The notice of award must be promptly provided to the successful respondent and must be published as provided in Section 1400.1505. When the lowest proposer by price is not selected, the Chief Procurement Officer shall issue a written explanation for the selection of another proposer. The written explanation must also be published as provided in Section 1400.1505.

g) Lease Agreements

All leases must be in writing and approved by the Chief Legal Counsel.
Length of Leases

A) Term. All leases must be for a term that does not exceed 10 years and must include a termination option in favor of the Treasurer's office after five years.

B) Renewal. Leases may include a renewal option if the leases and any renewals do not exceed a 10-year term.

h) Purchase Option

Initial leases of all space in entire, free-standing buildings must include an option to purchase exercisable by the State, unless the Chief Procurement Officer determines that inclusion of a purchase option is not in the State's best interest.

i) Rent Without Occupancy

Except when deemed by the Procurement Review Board to be in the best interest of the State, the Treasurer's office may not incur rental obligations before occupying the space rented.

j) Local Site Preference

The Chief Procurement Officer may, in his or her discretion, give leasing preferences to sites located in enterprise zones, tax increment financing districts or redevelopment districts.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.2045 Other Methods of Source Selection

a) State and Federal Warehouses

Prior to any equipment procurement, the Treasurer's office should consider property available from the State and Federal Surplus Warehouses that are under the jurisdiction of CMS.

b) State Agencies and Other Governmental Units

Various goods and services are available from State agencies and other governmental units. These may be procured without notice and competition.

c) Auction

Purchases may be made at an auction in accordance with the procedural requirements applicable to the particular auction. Notice and competition is not required and the amount payable will be the amount bid and accepted plus any required buyer's premium.

d) Donations

With approval of the Chief Procurement Officer, if the Treasurer's office receives a donation that provides the majority of the funding for a particular project, it may follow any procurement or contracting requirements established as a condition of the donation, but must follow this Part whenever practicable.

e) Broker Method for Obtaining Certain Insurance Coverages

Notwithstanding anything to the contrary in this Part, the Chief Procurement Officer, may, on a case-by-case basis, use this broker method to obtain insurance coverages when use of the methods of source selection set forth in Article 20 of the Code is not practicable or advantageous because, for example:

B) The process of obtaining quotes for needed insurance coverages cannot be accomplished within the normal procurement timeframes.

If the Chief Procurement Officer determines that this broker method is preferable for designated coverages, a two-part procurement process will be used to obtain the coverages.

A) A broker will be selected in accordance with the RFP process authorized by Section 20-15 of the Code, and the resulting contract will be subject to all requirements of the Code. The broker contract will be issued for a term of years, and during the term of the contract the broker will assist the State agency in obtaining coverages as set forth in subsection (e)(2)(B) as well as providing customary services such as issuing certificates of insurance and servicing policies.

B) The broker will assist the Treasurer's office by serving as broker of record in obtaining insurance coverages through the industry process of going to market to obtain quotes. The Treasurer's office will use an evaluation team to test the market for competitiveness, review the quotes, and select the insurers and products best fitting its needs. The solicitation, evaluation and selection process will be documented in writing and become a part of the public procurement file. The insurance coverages obtained, the term of coverage, and the premiums charged will be posted as attachments to the broker award notice.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.2505 General Provisions

a) Late Bids, Proposals, Responses, Withdrawals and Modifications

Definition. Any bid, proposal or response received after the time, date and place set for receipt is late. Any withdrawal or modification of a bid, proposal or response received after the time and date set for opening of bids, proposals or responses at the place designated for opening is late.
Treatment. No late bid, proposal or response, modification or withdrawal will be considered unless it is received before contract award, and the bid, proposal, response, modification or withdrawal would have been timely but for the action or inaction of Treasurer's office personnel.
Records. Records must be made and kept for each late bid proposal, response, modification, or withdrawal.
Any other submission that has a time or date deadline must be treated in the same manner as a late bid, proposal or response.

b) Extension of Time

The Chief Procurement Officer may extend the date or time for submitting a bid, proposal, response, modification or withdrawal prior to the opening of bids, proposals, responses, modifications or withdrawals for the convenience of the Treasurer's office.
After opening bids, proposals, or responses the Chief Procurement Officer may request that the offerors extend the time during which the State may accept their bids, proposals or responses if, with regard to bids, no other change is permitted. The reasons for requesting the extension must be documented.

c) Electronic Submissions

The Invitation for Bids, Request for Proposals, or Request for Information may state that electronic submissions will be considered if they are received at the designated office by the time and date set for receipt. Any required attachments will be submitted as stated in the Invitation for Bids, Request for Proposals or Request for Information.
Electronic submissions will be opened in accordance with electronic security measures in effect at the time of opening. Unless the electronic submission procedures provide for a secure receipt, the vendors assume the risk of premature disclosure due to submission in unsealed form.

d) Intent to Submit

The Invitation for Bids, Request for Proposals or Request for Information may require that vendors submit, by a certain time and date, a notice of their intent to submit a bid, proposal or response. Bids, proposals and responses submitted without complying with the notice of intent requirement will be rejected.

e) Only One Bid, Proposal or Response Received

If only one responsive bid, proposal or response is received, an award may be made to the single offeror if the Chief Procurement Officer finds that the proposal and price submitted is fair and reasonable, and that either other prospective offerors had a reasonable opportunity to respond or there is not adequate time for resolicitation. Otherwise:

new bids, proposals or responses may be solicited;
the procurement may be cancelled; or
if the Chief Procurement Officer determines in writing that the need for the supply or service continues, but that, after attempting to negotiate a better price, the one offer is not fair and reasonable and there is no time for resolicitation, the vendor is not responsible, or resolicitation would likely be futile, the procurement may be conducted with any vendor as a sole source procurement under Section 1400.2025 or as an emergency procurement under Section 1400.2030, as appropriate.

f) Unsolicited Offers

Defined. An unsolicited offer is any offer other than one submitted in response to a solicitation.
Conditions for Consideration. An unsolicited offer must be in writing and must be sufficiently detailed to allow a judgment to be made concerning the potential utility of the offer to the State.
Evaluation. The unsolicited offer will be evaluated to determine its utility to the State and whether it would be to the State's advantage to enter into a contract based on the offer. An unsolicited offer that meets the requirements of subsection (f)(2) may be considered for award if the procurement also meets the requirements of Section 1400.2020 for small purchases or Section 1400.2025 for sole source procurements, in which case those procedures must be followed as applicable.
Confidentiality. Any request for confidentiality of data contained in an unsolicited offer must be made in writing. If an award is made, confidentiality of data must be agreed upon by the parties and governed by the provisions of the contract. If agreement cannot be reached on confidentiality, the Chief Procurement Officer shall reject the unsolicited offer.

g) Clarification of Bids, Proposals and Responses

The Chief Procurement Officer may request that a vendor clarify its bid, proposal or response as a part of the evaluation process. A vendor is not allowed to change its bid, proposal or response in response to a request for clarification without the written approval of the Chief Procurement Officer.

h) Extension of Time on Indefinite Quantity Contracts

The time of performance of an indefinite quantity contract may be extended upon agreement of the parties, provided the extension is for 90 days or less and the Chief Procurement Officer determines in writing that it is not practicable to award another contract at the time of the extension.

i) Increase in Quantity on Definite Quantity Contracts

The quantity that may be ordered from a definite quantity contract may be increased by up to 20% provided the Chief Procurement Officer determines that separate procurement of the additional quantity is not likely to achieve lower pricing. The quantity may be increased by any percentage provided the dollar value of the increase does not exceed the small purchase threshold applicable to the type of good or service.

j) Novation or Change of Name

Assignment. No State contract is transferable, or otherwise assignable, without the written consent of the Chief Procurement Officer, but a vendor may assign monies receivable under a contract after due notice to the State. Assignment may require the execution of a contract with the assignee that meets all requirements for contracting with the State.
Recognition of a Successor in Interest; Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee must agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the State;

C) the transferor waives all rights under the contract as against the State; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the State, furnish a satisfactory performance bond.

Change of Name. When a vendor requests to change the name in which it holds a contract with the State, the Chief Procurement Officer shall, upon receipt of a document indicating the change of name, enter into an agreement with the requesting vendor to effect the change of name. The agreement changing the name must specifically indicate that no other terms and conditions of the contract are changed.

k) Contracting for Installment Purchase Payments, Including Interest

Contracts may provide for installment purchase payments, including interest charges, over a period of time. The interest rate shall not exceed that established by law.

l) Information Exempt from Disclosure under FOIA

Vendors must clearly identify in writing any information submitted to the Treasurer's office claimed to be exempt from the disclosure requirement of the Illinois Freedom of Information Act (FOIA) [5 ILCS 140] and must identify the basis of the claimed exemption and show how that basis applies to the request for exemption. Information submitted without a claim of exemption may be disclosed to the public without notice or permission. Information submitted with a claimed exemption may still be disclosed to the public if determined by the Treasurer's office, or other appropriate party, that the claimed exemption does not meet the requirements for withholding the information under FOIA. The Treasurer's office may, in its discretion, attempt to provide to the vendor reasonable notice and opportunity to object prior to disclosure of any material claimed by the vendor to be exempt from FOIA.
The CPO may request that bidders, offerors and other respondents provide an additional copy of their bid, offer or response that omits or redacts information claimed to be exempt under FOIA. This copy may be used to respond to FOIA requests for a copy of the respective bid, offer or response.
To the extent that these public records are exempt under Section 7 of FOIA, and only until an award or final selection is made, proposals and bids for any contract, grant, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the Treasurer along with information prepared by or for the Treasurer in preparation of a bid solicitation shall be available only to persons necessary to the procurement process. [5 ILCS 140/7(h)] Subsequent to an award or final selection such public records shall be made available for inspection or copying upon request to the extent required by FOIA.

m) Bidder or Offeror Authorized to Transact Business or Conduct Affairs or Do Business in Illinois

In addition to meeting any other requirement of law or rule, a person (other than an individual acting as a sole proprietor) may qualify as a bidder or offeror under this Part only if the person is a legal entity prior to submitting the bid, offer, or proposal. The legal entity must be authorized to transact business or conduct affairs in Illinois prior to execution of the contract.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.2510 Tie Bids and Proposals

a) Tie bids and proposals are those from responsive and responsible vendors that are identical in price or terms of the proposal.

b) Tie bids and proposals are treated as follows:

If the tied vendors include an Illinois resident vendor and a nonresident vendor, the Illinois resident vendor will be given the award if all the conditions for a resident vendor preference in Section 1400.4510 are met. "Illinois resident vendor" has the meaning given in Section 1400.4510. In all other situations, the decision is made in accordance with subsections (b)(2) through (b)(5).
If there is a significant difference in responsibility (including ability to provide the service or deliver in the quantity and at the time required), the award is made to the vendor who is deemed to be the most responsible. A vendor who has had experience in contracting with the State may be given additional consideration in determining responsibility if the Chief Procurement Officer determines that dealing with a vendor that has knowledge of State requirements, contracts, job sites, payment practices and other similar factors, and with which there has been favorable past experience, increases the likelihood of successful performance.
If there is no significant difference in responsibility, but there is a difference in the quality of the goods or services offered, the vendor offering the best quality is accepted.
If there is no significant difference in responsibility and no difference in quality of the goods or services offered, the vendor offering the earliest delivery time is accepted in any case in which the solicitation specified that the needs of the Treasurer's office require as early delivery as possible.
If the bids or proposals are equal in every respect, the award is made by lot unless the Chief Procurement Officer determines that splitting the award among two or more of the tied bidders or proposers is in the best interest of the State. Awards may be split if all affected bidders or proposers agree, if splitting is feasible given the type of good or service requested, if overall pricing would not increase, if delivery would be better ensured, or if necessary or desirable to promote future competition.

c) Record

Records must be made of all procurements on which tie bids or proposals are received and must be published as provided in Section 1400.1505, showing at least the following information:

A) the identification number of the solicitation;

B) the good or service; and

C) a listing of all the bidders or proposers and the prices submitted.

The records must be made part of the procurement file.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.2515 Correction or Withdrawal of Proposals

a) General

Corrections to bids, proposals or responses are allowed, but only to the extent correction is not prejudicial to the interest of the State or fair competition as determined by the Chief Procurement Officer. Withdrawals of proposals are allowed as provided in this Section.

b) Mistakes Discovered Before Opening

A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting as provided in this Section.

c) Confirmation of Mistake

When the Chief Procurement Officer knows or has reason to conclude that a mistake has been made, the officer should request the vendor to confirm the information. Situations in which confirmation should be requested include obvious or apparent errors on the face of the document or a price unreasonably lower than the others submitted. If the vendor alleges a mistake in the bid, proposal or response, it may be corrected or withdrawn if the conditions in this Section, as applicable, are met.

d) Mistakes Discovered After Opening but Before Award

Minor Mistakes. A minor mistake is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation of a bid, proposal or response from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State. The Chief Procurement Officer shall waive minor mistakes or allow the offeror to correct them depending on which is in the best interest of the State. Minor mistakes include insignificant mistakes where the effect on price, quantity, quality, delivery or contractual conditions is negligible. Examples of minor mistakes as to form include the failure of an offeror to:

A) return the number of signed bids, proposals or responses required by the solicitation;

B) sign the bid, proposal or response, but only if the unsigned bid, proposal or response is accompanied by other material indicating the offeror's intent to be bound, including but not limited to signature on an auxiliary form, submission of a guarantee or submission of a signed transmittal letter; or

C) acknowledge receipt of an amendment to the solicitation, but only if:

i) it is clear from the bid, proposal or response that the offeror received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on price, quantity, quality or delivery.

Corrections of Mistakes. If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only if:

A) the mistake and the intended correct offer are clearly evident on the face of the bid, proposal or response, in which event the offer may not be withdrawn; or

B) the mistake is not clearly evident on the face of the bid, proposal or response, but the offeror submits adequate proof that clearly and convincingly demonstrates both the existence of a mistake and the intended correct offer, and that correcting the mistake would not be contrary to the fair and equal treatment of other offerors.

Withdrawal of Bids, Proposals or Responses. If discussions are not held, or if the best and final offers upon which award will be made have been received, the offeror may be permitted to withdraw the bid, proposal or response if:

A) the mistake is clearly evident on the face of the proposal and the intended correct offer is not;

B) the offeror submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made but does not demonstrate the intended correct offer; or

C) the offeror submits adequate proof that clearly and convincingly demonstrates the intended offer, but to allow corrections would be contrary to the fair and equal treatment of other offerors.

e) Determinations Required

When a proposal is corrected or withdrawn, or correction or withdrawal is denied, the Chief Procurement Officer shall prepare a written determination documenting that relief was granted or denied in accordance with this Part. The requirement of this subsection to prepare a written determination shall not apply to "minor mistakes" as defined in subsection (d)(1).

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.2520 Cancellation of Solicitations and Rejection of Offers

a) Policy

Any solicitation may be cancelled without penalty, and any or all bids, proposals or responses may be rejected in whole or in part, when the Chief Procurement Officer determines in writing that cancellation is in the State's best interest.

b) Notice, Publication and Documentation

When a solicitation is cancelled or the offers are rejected, notice of the cancellation or rejection will be promptly provided to all affected vendors, published as provided in Section 1400.1505, and made part of the procurement file.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.2525 Multiple Awards

a) Policy

When determined by the Chief Procurement Officer to be in the best interest of the State, the Treasurer's office may make multiple awards under any solicitation.

b) Specific Goods and Services Following Multiple Awards

Subject to this subsection, specific goods and services may be purchased following multiple awards:

When the solicitation identified the specific good or service sought but led to multiple awardees, the specific good or service may be procured from the lowest bidder or best qualified proposer with whom relevant terms can be successfully negotiated.
When the solicitation did not list the specific good or service sought but led to multiple awards to vendors similarly qualified to provide the good or service, the specific good or service may be purchased from one of the multiple awardees; provided, however, that for the purchase of that good or service:

A) the Chief Procurement Officer shall maximize competition among the multiple awardees;

B) the determination shall allow for additional competition when the original solicitation produced insufficient information on the awardees' pricing for, or abilities to provide, the specific good or service sought; and

C) following any such competition, the Chief Procurement Officer shall award to the lowest bidder or best qualified proposer with whom relevant terms can be successfully negotiated.

History

Source: Added at 43 Ill. Reg. 2275, effective January 31, 2019

44 Ill. Adm. Code 1400.3005 Specifications

a) The Chief Procurement Officer shall write or authorize the writing of all specifications.

b) Specifications Prepared by Other Than State Personnel

Specifications may be prepared by other than Treasurer's office personnel, including, but not limited to, consultants, architects, engineers, designers and other drafters of specifications for public contracts. Contracts for the preparation of specifications by other than State personnel must require the specification writer to adhere to State requirements.
The person who prepared the specifications may not submit a bid or proposal to meet the procurement need unless the Chief Procurement Officer determines in writing that it would be in the best interest to accept a bid or proposal from that person and a notice to that effect is published as provided in Section 1400.1505.
Non-Prohibited Acts

This Section does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

A) Initiated a communication with an employee of the State to provide general information about industry trends and innovations, products, services or industry best practices.

B) Responded to a communication initiated by an employee of the State for the purposes of providing information to evaluate new products, services or technologies.

E) Provided technology supplies or services demonstrated to the State that represent industry trends and innovation and is not specifically tailored to meet the State's needs.

Prohibited Acts

A) Specifications. A person or business may not submit specifications to the Treasurer's office unless requested to by a State employee. With the exception of standard specifications that a vendor makes available to any potential purchaser, the Chief Procurement Officer or his or her designee must approve a Treasurer's office employee's request for specifications for a particular transaction.

B) Assistance to State Employees. A person or business is prohibited from bidding on a solicitation and from having a contract or subcontract if the person or business assisted a Treasurer's office employee who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract. Assistance to a Treasurer's office employee may include any of the following:

i) Draft (writes or assists the State with writing all or part of the procurement document);

ii) Review (reads the document or comments on the procurement document or signified approval or disapproval);

iii) Direct (any activity relating to giving instructions or commands or in supervising or overseeing the preparation of the procurement document);

iv) Prepare (any activity relating to organizing or distributing the documents, including through the Treasurer's website); or

v) Provides similar assistance, e.g., conducting research or providing any advice used in drafting, reviewing, directing or preparing procurement documents.

C) A person (and its affiliated or related entities) that contracts with the Treasurer's office to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement.

Exceptions. Any person or business who responds to an advertised request for information or other publicly available opportunity to provide information related to the procurement need or to review drafts of all or part of proposed procurement documents shall not be disqualified by virtue of responding to the State's publicly advertised request.

c) Procedures for the Development of Specifications

All procurements must be based on specifications that accurately reflect the State's needs. Specifications must clearly and precisely describe the salient technical or performance requirements.
Specifications must not include restrictions that do not significantly affect the technical requirements or performance requirements, or other legitimate State needs. All specifications must be written in a manner that describes the requirements to be met, without having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.
Any specifications or standards adopted by business, industry, a not-for-profit organization or governmental unit may be adopted by reference.
A specification may provide alternate descriptions when two or more design, functional or performance criteria will satisfactorily meet the State's requirements.

d) Brand Name or Equal Specification

Brand name or equal specifications may be used when the Chief Procurement Officer determines in writing that:

A) time does not permit the preparation of another form of specification, not including a brand name specification;

B) the nature of the product or the nature of the requirement makes use of a brand name or equal specification suitable for the procurement; or

C) use of a brand name or equal specification is in the State's best interest.

Brand name or equal specifications must seek to designate more than one brand as "or equal", and must further state that substantially equivalent products to those designated will be considered for award.
Required Characteristics. Unless the Chief Procurement Officer determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications must include a description of the particular design, functional or performance characteristics that are required.
Nonrestrictive Use of Brand Name or Equal Specifications. When a brand name or equal specification is used in a solicitation, the solicitation must contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use. The burden of proof that a product is equal is on the offeror.

e) Brand Name Only Specification

Use. A brand name only specification may be used only when the Chief Procurement Officer makes a written determination that is made part of the procurement file that only the identified brand name item or items will satisfy the State's needs. Brand name alone may be specified in order to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the Chief Procurement Officer. The Chief Procurement Officer may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time. For that period, the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected.
Competition. The Chief Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement must be made as a sole source procurement.
Small and Emergency Procurements. Brand name only specifications may be used when procuring items under Sections 1400.2020 (small purchases) and 1400.2030 (emergency procurements).

f) Pre-Solicitation Request for Information

When the Chief Procurement Officer does not have sufficient information about available supplies or services to issue a solicitation, the officer may issue a pre-solicitation request for information inviting vendors to submit non-price information about the availability of specified types of supplies and services. Vendors may be provided an opportunity to comment on the RFI itself and make suggestions as to the scope and information being requested that would facilitate the best possible responses from the vendor community. Public notice of the pre-solicitation request for information shall be published at least 14 days before the date set for the receipt of information. The submission of information by a vendor in response to a pre-solicitation request for information is not a prerequisite for that vendor to respond to a subsequent solicitation for the types of supplies and services for which information was solicited, and the issuance of a pre-solicitation request for information does not commit the Treasurer's office to make any procurement of supplies or services of any kind. The Treasurer's office may, consistent with Section 1400.2505(l), require that vendors responding to the RFI clearly identify any confidential information and may require vendors submit an additional copy of their bid, offer or response that omits or redacts information claimed to be exempt under FOIA. All other information received through a pre-solicitation request for information will be available for public review.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.3010 Security Requirements

a) The Chief Procurement Officer may require that a vendor furnish bid, proposal, or performance security on any contract.

b) Security, unless otherwise specified, may be in the form of cashier's check, certified check, money order, irrevocable letter of credit, or bond. Any bond must be issued by a surety company authorized to do business in the State of Illinois.

c) Unless the amount is set by law, the Chief Procurement Officer shall determine the amount, in dollars or percentage of contract price, that adequately protects the State's interests.

e) The Treasurer's office may require a bid or proposal security or a performance security on any contract.

f) A vendor may submit a single or continuous security each year that will be applicable on all contracts of the Treasurer's office. When a security is obligated in an amount equal to the sum of accumulated security requirements, additional security must be submitted for any new contract awarded.

44 Ill. Adm. Code 1400.3505 Types of Contracts

a) General

The Chief Legal Counsel shall determine the general form of all contracts. Subject to the limitations of this Section, the Chief Legal Counsel may use any type of contract that promotes the best interest of the State.

b) Prohibitions and Limitation

Cost-plus-a-percentage-of-cost contracts are prohibited. Cost-reimbursement contracts may only be used when the Chief Procurement Officer makes a written determination that a cost-reimbursement contract is likely to be less costly to the State than any other type or that it is impracticable to obtain the item except under that type of contract.

44 Ill. Adm. Code 1400.3510 Duration of Contracts

a) General

A multi-year contract for a term up to 10 years is authorized when it is in the best interest of the State.
A license agreement or other agreement may have a term longer than 10 years, including a perpetual term, provided the payment term is limited to no more than 10 years.

b) Each contract is contingent upon and subject to the availability of funds. The Treasurer, at his or her sole option, may terminate or suspend a contract, in whole or in part, without penalty or further payment being required, if the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay that obligation or if funds needed are insufficient for any reason. Each contract payable in whole or in part by any funds appropriated by the Illinois General Assembly shall recite that the contract is subject to termination and cancellation for lack of, or insufficiency in, funding. A vendor will be notified in writing by the Chief Procurement Officer of a failure to receive or a reduction or decrease in any appropriation affecting the contract. This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

c) Conditions for Use of Multi-year Contracts

A multi-year contract may be used when:

special production of definite quantities or the furnishing of long-term services are required to meet State needs; or
it is determined by the Chief Procurement Officer that a multi-year contract will serve the best interest of the State by encouraging effective competition or otherwise promoting economies in State procurement. The following factors must be considered by the Chief Procurement Officer before making the determination:

A) firms that are not willing or able to compete because of high start-up costs or capital investment in facility expansion and will be encouraged to participate in the competition when they are assured of recouping the costs during the period of contract performance;

C) stabilization of the contractor's work force over a longer period of time may promote economy and consistent quality; or

D) the cost and burden of contract solicitation, award, and administration of the procurement may be reduced.

d) Multi-year Contract Procedure

The solicitation must state:

the proposed term;
the amount of supplies or services required for the proposed contract period;
whether offerors may submit prices for:

A) the first fiscal period only;

B) the entire time of performance only; or

C) both the first fiscal period and the entire time of performance.

that a multi-year contract may be awarded and how award will be determined.

e) Renewals

When the original procurement specifically called for an initial term plus renewals, the renewals may be exercised without further procurement activity, provided that both: the initial term and the exercised renewals may not exceed 10 years and is by mutual agreement or the option is reserved solely to the State.
When the original procurement was silent as to renewals, a renewal without a new procurement must meet the requirements of Section 1400.2020 (small), 1400.2025 (sole source) or 1400.2030 (emergency) procurements.
When a renewal will result in the total term, counting the initial term and any previous renewals, to exceed 10 years, the renewal must be procured using one of the methods of source selection authorized by this Part. This renewal will start a new term that shall not exceed 10 years.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.3515 Contract Pricing

Unless otherwise allowed by the solicitation, prices quoted will be all-inclusive covering transportation, transit insurance, delivery, installation, taxes, and any other costs.

44 Ill. Adm. Code 1400.3520 Contract Provisions

a) Mandatory Provisions

The following provisions are required for all contracts entered into by the Treasurer's office, in addition to the requirements of State and federal law and the regulations of the Office of the Comptroller:

Subcontractors. Any contract granted hereunder must state whether the services of a subcontractor will be used. The contract must require the disclosure in writing of the names and address of each subcontractor having a subcontract with an annual value of more than $50,000, the general type of work to be performed by each subcontractor, and the expected amount of money each will receive under the contract. The contractor will be required to get approval from the Chief Procurement Officer prior to adding or changing subcontractors. A subcontractor, or contractor on behalf of a subcontractor, may identify information that is deemed proprietary or confidential. If the Chief Procurement Officer determines the information is not relevant to the primary contract, the Chief Procurement Officer may excuse the inclusion of the information. If the Chief Procurement Officer determines the information is proprietary or could harm the business interest of the subcontractor, the Chief Procurement Officer may, in his or her discretion, redact the information. Redacted information shall not become part of the public record. [30 ILCS 500/20-120(a)]
Subject to Appropriation. All leases must recite that they are subject to termination and cancellation in any year for which the General Assembly fails to make an appropriation to make payments under the terms of the lease.
Right to Audit Books and Records

A) Maintenance of books and records. Every contract and subcontract shall require the contractor or subcontractor, as applicable, to maintain books and records relating to the performance of the contract or subcontract and necessary to support amounts charged to the State under the contract or subcontract. The books and records shall be maintained by the contractor or subcontractor for a period of at least 3 years from the later of the date of final payment under the contract or completion of the contract or subcontract and thatperiod shall be extended for the duration of any audit in progress at the time of that period's expiration. [30 ILCS 500/20-65(a)]

B) Audit. Every contract and subcontract shall provide that all books and records required to be maintained under subsection (a) shall be available for review and audit by the Auditor General and the Treasurer's office. Every contract and subcontract shall require the contractor and subcontractor, as applicable, to cooperate fully with any audit. [30 ILCS 500/20-65(b)]

b) Optional Provision

Any contract entered into by the Treasurer's office under this Part may contain a clause requiring that if more favorable terms are granted by the contractor to any similar governmental agency in any state in a contemporaneous agreement let under the same or similar financial terms and circumstances for comparable supplies or services, the more favorable terms shall be applicable under the contract. [30 ILCS 500/25-30]

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.3525 Prevailing Wage Requirements

a) Applicability

All services, as defined in subsection (b), furnished under service contracts of $2,000 or more or $200 or more per month and under printing contracts are subject to the following prevailing wage requirements:

Not less than the general prevailing wage rate of hourly wages for work of a similar character in the locality in which the work is produced shall be paid by the successful vendor to its employees who perform the work on the State contracts.
The offeror, in order to be considered to be a responsible offeror for the purposes of this Part, shall certify to the Treasurer's office that wages to be paid to its employees are no less, and fringe benefits and working conditions of employees are not less favorable, than those prevailing in the locality where the contract is to be performed.
Prevailing wages and working conditions shall be determined by the Director of the Illinois Department of Labor. [30 ILCS 500/25-60]

b) As used in this Section, "services" means janitorial cleaning services, window cleaning services, building and grounds services, site technician services, natural resources services, food services, and security services. "Printing" means and includes all processes and operations involved in printing, including but not limited to letterpress, offset, and gravure processes, the multilith method, photographic or other duplicating process, the operations of composition, platemaking, presswork, and binding, and the end products of those processes, methods, and operations. As used in this Part "printing" does not include photocopiers used in the course of normal business activities, photographic equipment used for geographic mapping, or printed matter that is commonly available to the general public from contractor inventory. [30 ILCS 500/25-60(b)]

c) For printing contracts, "locality" means one of the following areas:

Cook County.
Boone, Bureau, Carroll, Champaign, DeKalb, DeWitt, DuPage, Ford, Fulton, Grundy, Hancock, Henderson, Henry, Iroquois, Jo Daviess, Kane, Kankakee, Kendall, Knox, Lake, LaSalle, Lee, Livingston, Logan, Marshall, Mason, McDonough, McHenry, McLean, Mercer, Ogle, Peoria, Piatt, Putnam, Rock Island, Schuyler, Stark, Stephenson, Tazewell, Vermilion, Warren, Whiteside, Will, Winnebago, Woodford.
Adams, Alexander, Bond, Brown, Calhoun, Cass, Christian, Clark, Clay, Clinton, Coles, Crawford, Cumberland, Douglas, Edgar, Edwards, Effingham, Fayette, Franklin, Gallatin, Greene, Hamilton, Hardin, Jackson, Jasper, Jefferson, Jersey, Johnson, Lawrence, Macon, Macoupin, Madison, Marion, Massac, Menard, Monroe, Montgomery, Morgan, Moultrie, Perry, Pike, Pope, Pulaski, Randolph, Richland, Saline, Sangamon, Scott, Shelby, St. Clair, Union, Wabash, Washington, Wayne, White, Williamson.
When the printing is performed in a plant outside the jurisdiction of this State, it is deemed produced in the Illinois locality in which delivery of the printing ordered is required to be made. When the printing is required to be delivered to more than one Illinois locality, it is deemed produced in the Illinois locality to which the largest dollar volume of printing under the contract is to be delivered.

d) For janitorial services, window washing, building and grounds services, site technician services, natural resources services, and security guard services, location means the county in which the work is to be performed.

e) This Section does not apply to services furnished under contracts for professional or artistic services. [30 ILCS 500/25-60(e)]

f) This Section does not apply to vocational programs of training for physically or mentally handicapped persons or to sheltered workshops for the severely disabled. [30 ILCS 500/25-60(f)]

g) The Prevailing Wage Act [820 ILCS 130] shall apply to any construction contract procured under this Part. It is the policy of the Treasurer's office that a wage of no less than the general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workers and mechanics employed by or on behalf of the Treasurer's office. [820 ILCS 130/1] Construction contracts shall include a provision notifying the vendor that the contract is subject to the Prevailing Wage Act unless the provisions of that Act exempt its application.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.4005 Disputes and Protests Regarding Solicitations and Awards

a) Procedures

Any person may submit a written protest related to the notice of the procurement, the solicitation document, any pre-bid/proposal meeting and any decision to reject a late bid or proposal. Any person who has submitted a bid or proposal may submit a written protest to a decision to reject the person's bid or proposal or to award to another person. In regard to the solicitation notice or solicitation document, including specifications, a protest must be received within 14 calendar days after the date the solicitation was posted to the Treasurer's Web Site and must be received by the Chief Procurement Officer before the date for opening bids or proposals. In regard to rejection of individual bids or proposals or awards, the protest must be received by close of business no later than 14 calendar days after the protesting party knows, or should have known, of the facts giving rise to the protest to ensure consideration and, in any event, must be received before execution of the applicable contract. Any notice posted to the Treasurer's Web Site establishes the "known or should have known" date for the subject matter of the notice. The protesting party may be required to provide additional information to the Treasurer's office in order to process the dispute or protest. If the Chief Procurement Officer is unable to resolve the issue in a timely manner, then it will be referred to the Procurement Review Board for a final determination that will be communicated to the protesting party involved in the dispute or protest and made part of the procurement file within 7 days after the referral by the Chief Procurement Officer.

b) Procurement Delays

The investigation of a dispute or protest may cause a delay in the procurement process if deemed necessary by the Chief Procurement Officer. If an action concerning the protest has commenced in court, the Chief Procurement Officer will not act on the protest but will refer the protest to the Attorney General, unless the court requests, expects, or otherwise expresses interest in the decision of the Chief Procurement Officer.

c) Stay or Withdrawal of Award

An award may be stayed or withdrawn by the Chief Procurement Officer if the Procurement Review Board reaches a determination that to do so is necessary in fairness to the other offerors and to protect the interests of the State.

d) Finality of Determinations

Except as otherwise provided in this Part, determinations made by the Chief Procurement Officer under this Part are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law. [30 ILCS 500/20-70]

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.4010 Contract Controversies

Contract controversies must be promptly referred to the Chief Procurement Officer for resolution. If the Chief Procurement Officer is unable to resolve the controversy, the controversy will be referred to the Chief Legal Counsel who will attempt to resolve the matter. If the Chief Legal Counsel is unable to resolve the matter satisfactorily, and believes that litigation is probable or desirable, he or she may request the Attorney General's assistance in resolving the dispute.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.4015 Remedies

a) In all of the following cases the Chief Procurement Officer may, with the approval of the Treasurer and subject to the determination of the Chief Legal Counsel under subsection (b), terminate or rescind any contract entered into under this Part in the event:

The successful bidder or proposer fails to furnish a satisfactory performance or performance bond within the time specified.
The vendor fails to make delivery at the place or within the time specified in the contract or as ordered.
Any goods or services provided under the contract are:

A) rejected (for not meeting the specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced or corrected by the vendor; or

B) repeatedly rejected, even though the vendor offers to replace or correct the goods or services promptly.

There is sufficient evidence to show that the contract was obtained by fraud, collusion, conspiracy or other unlawful means.
The vendor is guilty of misrepresentation in connection with another contract for the sale of goods or services to the State.
The vendor is insolvent, is the subject of a bankruptcy filing, is adjudged bankrupt, or enters into a general assignment for the benefit of his or her creditors or receivership due to insolvency.
The vendor disregards laws and ordinances, rules or instructions of a contracting officer or acts in violation of any provision of the contract or this Part, or the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.
Any other material breach of contract or other unlawful act by the vendor occurs.

b) Determination of Right to Terminate or Rescind Contract

The Chief Legal Counsel shall determine in writing that a violation listed in subsection (a) has occurred prior to the termination or rescission of a contract under this Section.

c) Contracts that are terminated under this Section will be terminated at no cost to the State.

d) Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the State may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the State of Illinois for any damages suffered by it because of the vendor's breach of contract or other unlawful act on his or her part on which the cancellation is based.

e) Damages

The damages for which the State shall, if requested by the State, be compensated as provided in this Section or by a suit on the vendor's performance bond or by other legal remedy include, but are not limited to, the following:

the additional cost of goods or services bought elsewhere;
cost of repeating the procurement procedure;
any expenses incurred because of delay in receipt of goods or services; and
any other damages caused by the vendor's breach of contract or unlawful act.

f) Effect of Declaring a Contract Null and Void

In all cases where a contract is voided, the Treasurer's office will endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments will be made under the contract.

g) In lieu of terminating or rescinding the contract, when appropriate the Chief Procurement Officer may seek to negotiate an alternative resolution that is at least as beneficial to the State as termination or rescission, but the Chief Procurement Officer must not waive the right to terminate or rescind the contract if the situation does not improve.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4020 Suspension

a) This Section applies to all suspensions of vendors from consideration for award of contracts.

b) The Chief Procurement Officer may suspend a vendor from doing business with the Treasurer's office for all or specific types of supplies or services. A suspension may be issued upon a determination by the Chief Procurement Officer that the vendor violated this Part or failed to conform to specifications or terms of delivery.

c) When the Chief Procurement Officer determines that cause exists for suspension, a notice of suspension, including a copy of the determination, must be sent to the suspended vendor. Bids, proposals and responses will not be solicited from the suspended vendor, and, if they are received, they will not be considered during the period of suspension.

d) A contractor may be suspended for any period of time commensurate with the seriousness of the offense. A suspension may be for an indefinite period of time subject to demonstration by the contractor that the suspension in no longer necessary.

e) The suspension will be effective within seven calendar days after receipt of notice unless an objection is filed. If an objection were filed, the suspension would not become effective until the evaluation of the objection by the Chief Procurement Officer is completed.

f) The Treasurer's office may consider suspensions and debarments by other State agencies and may choose to not solicit or accept bids, proposals and responses from vendors on another agency's list of suspensions and debarments during the period of suspension or debarment.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.4505 Procurement Preferences

The procurement preferences identified in this Subpart must be considered in developing procurement documents, conducting evaluations and drafting contracts Any preferences applicable to an individual procurement will be stated in the solicitation for that procurement.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4510 Resident Vendor Preference

a) "Illinois resident vendor", as used in this Section, means a person authorized to transact business in this State and having a bona fide establishment for transacting business within this State where it was actually transacting business on the date when any competitive solicitation for a public contract is first advertised or announced, including a foreign corporation duly authorized to transact business in this State that has a bona fide establishment for transacting business within this State where it was actually transacting business on the date when any competitive solicitation for a public contract is first advertised or announced. [30 ILCS 500/45-10(b)]

b) In breaking a tie bid or proposal, as described in Section 1400.2510, an Illinois resident vendor shall be given the award.

c) An Illinois resident vendor shall be allowed a preference over a non-resident vendor equal to any in-state vendor given or required by the state of the non-resident vendor.

e) This Section does not apply to any contract for any project as to which federal funds are available for expenditure when its provisions may be in conflict with federal law or federal regulation. [30 ILCS 500/45-10(c)]

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4515 Soybean Oil-Based Ink

Contracts requiring the procurement of offset printing services shall specify the use of soybean oil-based ink or vegetable oil-based ink unless the Chief Procurement Officer or a designee determines that another type of ink is required to assure high quality and reasonable pricing of the printed product. [30 ILCS 500/45-15]

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4520 Recycled Supplies

When a contract is to be awarded to the lowest responsible bidder or offeror, an otherwise qualified bidder or offeror who will fulfill the contract through the use of products made of recycled supplies shall be given preference over other bidders or offerors unable to do so, provided that the cost included in the bid of supplies is equal to or less than other bids or offers, unless the use of the product constitutes an undue practical hardship. Nothing in this Section shall be construed to apply to the Treasurer's office for the purposes of procuring construction and construction-related services. [30 ILCS 500/45-20].

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4525 Recycled Paper

All paper purchased for use by the Treasurer's office must be recyclable paper unless recyclable paper cannot be used to meet the requirements of the Treasurer's office. [30 ILCS 500/45-25]. The Treasurer's office will determine its paper requirements to allow the use of recyclable paper whenever practicable.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4526 Environmentally Preferable Procurement

Notwithstanding any rule, regulation, statute, order, or policy of any kind, the Treasurer's office shall contract for supplies and services that are environmentally preferable. If, however, contracting for an environmentally preferable supply or service would impose an undue economic or practical hardship on the Treasurer's office, or if an environmentally preferable supply or service cannot be used to meet the requirements of the Treasurer's office, then the Treasurer's office need not contract for an environmentally preferable supply or service. Specifications for contracts, at the discretion of the Treasurer's office, may include a price preference of up to 10% for environmentally preferable supplies or services. [30 ILCS 500/45-26]

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4530 Special Sources

The Treasurer's office may contract with any qualified source of supply, including the following special sources, from which procurements may be made without notice and competition:

a) Illinois Correctional Industries (see 30 ILCS 500/45-30);

c) Qualified not-for-profit agencies for persons with severe disabilities (see 30 ILCS 500/45-35);

d) State agencies and other governmental units.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.4535 Qualified Not-for-Profit Agencies for Persons with Significant Disabilities

a) Purpose

Contracts with qualified not-for-profit agencies for persons with significant disabilities (work centers; see Section 45-35 of the Code) under this Section should promote employment opportunities for persons with significant disabilities while meeting the needs of the Treasurer's office. In making a determination to purchase from a qualified work center, the Treasurer's office may review the number of jobs performed by persons with significant disabilities and the total amount of the contract. A reasonable amount of subcontracting is allowed under this Part to the extent it does not deter from promoting employment for persons with significant disabilities.

b) Usage

Purchases may be made from work centers without prior notice or competition.

c) Preference

Prior to conducting a competitive procurement or otherwise contracting for supplies or services on the preference list, the Treasurer's office may contact one or more of the qualified work centers that provide the needed supply or service and attempt to negotiate a fair and reasonable contract at a price not substantially more than had it been competitively bid. If negotiations fail or if circumstances suggest using a qualified work center is not reasonable, the Chief Procurement Officer may authorize use of an alternative procurement method.

d) Compliance with this Part

Qualified work centers that contract with the Treasurer's office must comply with all applicable provisions of this Part.

History

Source: Former Section repealed at 40 Ill. Reg. 13847, effective September 23, 2016; new Section added at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4540 Vehicles

a) Specification

Contracts for the purchase or lease of new passenger automobiles, other than station wagons, vans and four-wheel drive vehicles, shall specify the procurement of a model that, according to the most current mileage study published by the U.S. Environmental Protection Agency, can achieve at least the minimum average fuel economy in miles per gallon imposed upon manufacturers of vehicles under Title V of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2001 46). [35 ILCS 500/45-40(a)] Further, all gasoline-powered vehicles purchased from State funds must be flexible fuel vehicles or fuel efficient hybrid vehicles. Any vehicle purchased from State funds that is fueled by diesel fuel shall be certified by the manufacturer to run on 5% biodiesel (B5) fuel. [30 ILCS 500/25-75]

Flexible fuel vehicles are automobiles or light trucks that operate on either gasoline or E-85 (85% ethanol, 15% gasoline) fuel.
Fuel efficient hybrid vehicles are automobiles or light trucks that use a gasoline or diesel engine and an electric motor to power and gain a minimum of 20% increase in combined USEPA city/highway fuel economy over an equivalent or most-similar conventionally-powered model.

b) North American-made Vehicles. All vehicles purchased by the Treasurer's office shall have a Vehicle Identification Number that begins with the number one, the number 2, the number 4, or the number 5.

c) In awarding contracts requiring the procurement of vehicles, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of vehicles powered by ethanol produced from Illinois corn or biodiesel fuels produced from Illinois soybeans. [30 ILCS 500/45-60]

d) Exemptions

The Chief Procurement Officer may determine that certain vehicle procurements are exempt from this Section based on intended use or other reasonable considerations such as health and safety of Illinois citizens. [30 ILCS 500/25-75(c)] Nothing in this Section shall require the Treasurer's office to stop using any vehicle that exists in the State fleet of motor vehicles.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4545 Illinois Agricultural Products

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.4550 Corn-Based Plastics

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.4555 Vehicles Powered by Agricultural Commodity-Based Fuel

In awarding contracts requiring the procurement of vehicles, preference may be given to an otherwise qualified bidder or offeror who will fulfill the contract through the use of vehicles powered by ethanol produced from Illinois corn or biodiesel fuels produced from Illinois soybeans. [30 ILCS 500/45-60]

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.4560 Small Businesses

a) Set-Aside

The Chief Procurement Officer may designate as small business set-asides a fair proportion of contracts for the provision of goods and services for award to small businesses in Illinois. A set-aside designation may last indefinitely or for a stated period of time.

b) Required Use

If the Treasurer's office wishes to make a procurement covered by a set-aside designation, the solicitation must note that responses are limited to those from responsible small businesses. Bids, proposals or responses received from large businesses will be rejected as nonresponsive.

c) Withdrawal of Set-Aside

If the Chief Procurement Officer determines that acceptance of the best bid, proposal or response will result in the payment of an unreasonable price, the Chief Procurement Officer will reject all bids, proposals or responses and withdraw the designation of small business set-aside for the procurement in question. When a small business set-aside is withdrawn, notification must be published as provided in Section 1400.1505 with an explanation. After withdrawal of the small business set-aside, the procurement will be conducted in accordance with the requirements of this Part.

d) Criteria for Small Business

Unless the Chief Procurement Officer provides a definition for a particular procurement that reflects industrial characteristics, a small business is one:

Independently owned and operated.
Not dominant in its field of operations. This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration must be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
With annual sales for the most recently ended fiscal year no greater than:

A) $13,000,000 for wholesale business;

B) $8,000,000 for retail business or businesses selling services; or

C) $14,000,000 for construction business.

With no more than 250 employees if a manufacturing business.

A) A manufacturing business must calculate how many people it employs by determining its average full-time equivalent employment, based on the number of persons employed on a full-time, part-time, temporary or other basis for its most recently ended fiscal year.

B) If a manufacturing business has been in existence for less than a full fiscal year, its average employment should be calculated for the period that it has been in existence.

If both a wholesaler and a retailer, the combined wholesale and retail annual sales for its most recently completed fiscal year may not exceed $16,000,000. The retail component may not exceed $6,000,000 and the wholesale component may not exceed $10,000,000.
When computing the size status of a vendor, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates must be included. Concerns are affiliates when either one directly or indirectly control or have the power to control the other, or when a third party or parties control or have the power to control both. In determining whether concerns are independently owned and operated and whether or not affiliation exists, consideration must be given to all appropriate factors, including use of common facilities, common ownership and management and contractual arrangements. However, a franchise relationship does not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

e) Reliance on the Determination of CMS

The Treasurer's office may defer to the determination by CMS or the Chief Procurement Officer for General Services that a business is a small business.

f) Small Business Specialist

The Small Business Specialist for the Treasurer's office shall assist small businesses seeking to provide goods or services to the Treasurer's office and is specifically responsible for the following:

Compiling and maintaining a comprehensive bidders list of small businesses and cooperating with the Federal Small Business Administration in locating potential sources for various products or services. The Small Business Specialist may rely on the bidders list developed by CMS to satisfy this responsibility.
Assisting small businesses in complying with the procedures for bidding, proposing or responding to solicitations of the Treasurer's office.
Assisting in the development of small business set-asides if determined by the Chief Procurement Officer to be in the State's best interest.
Making recommendations to the Chief Procurement Officer for the simplification of specifications and terms in order to increase the opportunities for small business participation.
Assisting in investigations by the Treasurer's office to determine the responsibility of any offeror on any small business set-asides.

g) Small business annual report

The Chief Procurement Officer shall annually before December 1 report in writing to the General Assembly concerning the awarding of contracts to small businesses. The report will include the total value of awards made in the preceding fiscal year under the designation of small business set-aside. The requirement for reporting to the General Assembly will be satisfied by filing copies of the report as required by Section 3.1 of the General Assembly Organization Act [25 ILCS 5/3.1].

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.4565 Preferences for Veterans, Minorities, Women, and Persons with Disabilities

This Part is subject to the applicable provisions of the Veterans Preference Act [330 ILCS 55], the Business Enterprise for Minorities, Women, and Persons with Disabilities Act [30 ILCS 575], and the State Treasurer Act [15 ILCS 505]. The Chief Procurement Officer shall do whatever is reasonably necessary to enable veterans, minorities, women and persons with disabilities to participate in the procurement process. The Chief Procurement Officer may rely on the determination of CMS and/or the Department of Veterans' Affairs that a person or business qualifies for a preference under these Acts. It is hereby declared to be the policy of the State Treasurer to promote and encourage the use of businesses owned by or under the control of qualified veterans of the armed forces of the United States, qualified service-disabled veterans, minority persons, women, or persons with a disability in the area of goods and services. Furthermore, the State Treasurer shall utilize such businesses to the greatest extent feasible within the bounds of financial and fiduciary prudence, and take affirmative steps to remove any barriers to the full participation of such firms in the procurement and contracting opportunities afforded. [15 ILCS 505/30(b)]

a) Definitions

For the purposes of this Section:

any terms "minority person", "woman", "person with a disability", "minority-owned business", "women-owned business", "business owned by a person with a disability", and "control" have the meanings provided in Section 1 of the Business Enterprise for Minorities, Women, and Persons with Disabilities Act; and
the terms "veteran", "qualified veteran-owned small business", "qualified service-disabled veteran-owned small business", "qualified service-disabled veteran", and "armed forces of the United States" have the meanings provided in Section 45-57 of the Illinois Procurement Code. [15 ILCS 505/30(a)]

b) Procurement of Goods and Services

When the State Treasurer procures goods and services, whether through a request for proposal or otherwise, the Chief Procurement Officer is authorized to incorporate preferences in the scoring process for:

any of the following:

A) a minority-owned business;

B) a women-owned business;

C) a business owned by a person with a disability;

D) a qualified veteran-owned small business; or

E) a qualified service-disabled veteran-owned small business; and

businesses having a record of support for increasing diversity and inclusion in board membership, management, employment, philanthropy, and supplier diversity, including investment professionals and investment sourcing. [15 ILCS 505/30(d)]

c) Utilization of Financial Institutions

When the State Treasurer utilizes a financial institution or determines the eligibility of a financial institution to participate in a banking contract, investment contract, investment activity, or other financial program of the State Treasurer, he or she shall review the financial institution's Community Reinvestment Act (29 USC 2901) rating, record, and current level of financial commitment to the community prior to making a decision to utilize or determine the eligibility of such financial institution. [15 ILCS 505/30(d)]

d) Reporting

Beginning with fiscal year 2019, and at least annually thereafter, the State Treasurer shall report on his or her utilization of minority-owned businesses, women-owned businesses, businesses owned by a person with a disability, qualified veteran-owned small businesses, or qualified service-disabled veteran-owned small businesses. The report shall be published on the State Treasurer's official website. [15 ILCS 505/30(e)]

History

Source: Amended at 43 Ill. Reg. 2275, effective January 31, 2019

44 Ill. Adm. Code 1400.4595 Hubzone Business Contracts

a) For the purposes of this Section, "HUBZone business" means a business that operates and employs people in Historically Underutilized Business Zones (HUBZone) as designated by the federal HUBZone Empowerment Act. [30 ILCS 500/45-95(a)]

b) The Treasurer's office may provide a 2% price preference for a HUBZone business that is responding to an Invitation for Bid or Request for Proposal.

c) The Treasurer's office may provide up to a 10% price preference for a HUBZone business that is responding to an IFB or RFP. The Treasurer's office shall specify the price preference in the solicitation document.

d) A HUBZone business must include evidence of its HUBZone qualification with its bid or offer if it is claiming a HUBZone price preference under this Section.

e) The Chief Procurement Officer shall publish, in the notice of award, the percentage of the HUBZone price preference for each contract awarded through this Section.

f) Should a contractor no longer qualify as a HUBZone business during the term of a contract that was awarded using the HUBZone price preference, the Chief Procurement Officer may void the contract.

g) A contract may not be renewed if the contractor no longer qualifies as a HUBZone business and the contract was awarded using the HUBZone price preference.

History

Source: Added at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.5002 Continuing Disclosure; False Certification

a) Every person that has entered into a multi-year contract and every subcontractor with a multi-year subcontract subject to the Code, shall certify, by January 1 of each fiscal year covered by the contract after the initial fiscal year, to the Treasurer's office any changes that affect its ability to satisfy the requirements of Article 50 of the Code. [30 ILCS 500/50-2]

b) If a contractor or subcontractor continues to meet all requirements of Article 50 of the Code, or if the contract has been substantially completed but has not yet expired, the certification under subsection (a) is not required.

History

Source: Added at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.5005 Purpose

It is the express duty of Chief Procurement Officer and designees to maximize the value of the expenditure of public moneys in procuring goods, services, and contracts for the Treasurer's office and to act in a manner that maintains the integrity and public trust of State government. In discharging this duty, they are charged to use all available information, reasonable efforts, and reasonable actions to protect, safeguard and maintain the procurement process of the Treasurer's office.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.5010 Bribery

a) Prohibition

No person or business will be awarded a contract or subcontract under this Part who:

has been convicted under the laws of Illinois or any other state of bribery or attempting to bribe an officer or employee of the State of Illinois or any other state in the officer's or employee's official capacity; or
has made an admission of guilt of that conduct that is a matter of record but has not been prosecuted for that conduct.

b) Businesses

No business will be barred from contracting with any unit of State or local government as a result of a conviction under this Section of any employee or agent of the business if the employee or agent is no longer employed by the business and:

the business has been finally adjudicated not guilty; or
the business demonstrates to the governmental entity with which it seeks to contract, and that entity finds, that the commission of the offense was not authorized, requested, commanded, or performed by a director, officer, or high managerial agent on behalf of the business as provided in Section 5-4(a)(2) of the Criminal Code of 1961 [720 ILCS 5/5-4(a)(2)].

c) Conduct on Behalf of Business

d) Certification

Every bid, offer, response, submission, quotation or quote submitted to every contract executed by the State, every subcontract subject to Section 20-120 of the Code, and every vendor's submission to a vendor portal shall contain a certification by the bidder, offeror, respondent, submitter, person who submits a quotation or quote, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, respondent, submitter, person who submits a quotation or quote, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-5 of the Code, and acknowledges that the Chief Procurement Officer may declare the related contract void if any certifications required by that Section are false. If the false certification is made by a subcontractor, then the contractor's submitted bid, offer, response, submission, quotation or quote and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. A contractor or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony. [30 ILCS 500/50-5(d)]

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.5015 Felons

Unless otherwise provided, no person or business convicted of a felony may do business with the Treasurer's office from the date of conviction until 5 years after the date of completion of the sentence for that felony, unless no person held responsible by a prosecutorial office for the facts upon which the conviction was based continues to have any involvement with the business.

44 Ill. Adm. Code 1400.5020 Conflicts of Interest

a) Prohibitions

The Treasurer and all employees of the Treasurer's office who receive compensation for the employment in excess of 60% of the salary of the Governor of the State of Illinois and the spouses and minor children of those persons may not have or acquire any contract, or any direct pecuniary interest in any contract, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois.
No firm, partnership, association, or corporation in which any person described in subsection (a)(1) is entitled to receive:

A) more than 7 1/2% of the total distributable income; or

B) an amount in excess of the salary of the Governor,

may have or acquire any contract or direct pecuniary interest in any contract that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois.

No firm, partnership, association, or corporation in which any person described in subsection (a)(1) together with his or her spouse or minor children is entitled to receive:

A) more than 15%, in the aggregate, of the total distributable income; or

B) an amount in excess of two times the salary of the Governor,

b) An individual has a direct pecuniary interest in a contract when the individual is owed any payment in conjunction with performance of a contract, including finders' fees and commission payments.

c) Distributable income means the income to a company after payment of all expenses, including employee salary and bonus, and retained earnings, and which remaining amount is actually distributed to those entitled to receive a share of the income.

d) Applicability

This Section does not apply to or affect the validity of:

any bond or other security previously offered for sale, to be offered for sale or sold by or for the State of Illinois;
any contract made between the State and a person described in subsection (a)(1) that was in existence before the election or employment of the person if the contract can be completed within 365 days after the person takes office; otherwise, it is voidable by the State;
payments made for a public aid recipient;
any contract for personal services as a teacher or school administrator between the Treasurer, or an employee of the Treasurer's office, and a school district, public community college district, or the University of Illinois, Southern Illinois University, Illinois State University, Eastern Illinois University, Northern Illinois University, Western Illinois University, Chicago State University, Governor's State University, or Northeastern Illinois University;
any contract for personal services of a wholly ministerial character, including, but not limited to, services as a laborer, clerk, typist, stenographer, page, bookkeeper, receptionist, or telephone switchboard operator, made by a spouse or minor child of the Treasurer or an employee of the Treasurer's office;
payments made to the Treasurer or an employee of the Treasurer's office for or on behalf of a child or family served by the Department of Children and Family Services;
contracts that are competitively procured as provided in this Part between the Treasurer's office and licensed professionals.

e) Exemptions

The Treasurer, with the approval of the Chief Procurement Officer, may exempt named individuals from the prohibitions in this Section when, in his or her judgement, the public interest in having the individual in the service of the State outweighs the public policy evidenced in this Section. An exemption is effective only when it is filed with the Secretary of State and the Comptroller and includes a statement that includes the name of the individual, all pertinent facts that would make this Section applicable, the reason for the exemption and a declaration that the individual is exempted from this Section. Notice of each exemption must be published as provided in Section 1400.1505 and made part of the procurement file.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.5025 Negotiations for Future Employment

a) No person employed in or on a continual contractual relationship with the Treasurer's office may participate in contract negotiations on behalf of the Treasurer's office with any firm, partnership, association, or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment.

b) An individual who performs services under a contract and who meets the requirements of an "employee" or "contractual employee" as opposed to an "independent contractor" is in a "continual contractual relationship" from the effective date of the contract until the time the contract is terminated.

c) "Independent contractors", as opposed to "employees" or "contractual employees", are in a "continual contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the Treasurer's office must act to terminate, or has a definite term of at least three months.

44 Ill. Adm. Code 1400.5030 Revolving Door

The Chief Procurement Officer may not engage in any procurement activity relating to the Treasurer's office for two years after terminating his or her position as Chief Procurement Officer. This prohibition includes, but is not limited to, lobbying the procurement process or specifying, bidding or proposing bids, proposals or contract documents, on their own behalf or on behalf of any firm, partnership, association or corporation. This prohibition is in addition to the revolving door prohibitions of Section 5-45 of the State Officials and Employees Ethics Act [5 ILCS 430].

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.5035 Disclosure of Financial Interests and Potential Conflicts of Interest

a) All offers from responsive offerors with an annual value of more than the small purchase threshold then in effect pursuant to Section 1400.2020(a) must be accompanied by disclosure of the financial interests of the offeror. The financial disclosure of each successful offeror must be made part of the procurement. Disclosures are not required for sole source and emergency contracts, but shall be obtained in whole or in part when practical and when the annual value exceeds the small purchase threshold then in effect pursuant to Section 1400.2020(a).

b) Disclosure by the offerors must include any ownership or distributive income share that is in excess of 5%, or an amount greater than 60% of the annual salary of the Governor, of the offering entity or its parent entity ("parent entity" meaning an entity that owns 100% of the bidding entity), whichever is less, unless the offeror:

is a publicly traded entity subject to Federal 10K reporting, in which case it may submit its 10K disclosure in place of the prescribed disclosure, or:
is a privately held entity that is exempt from Federal 10k reporting but has more than 100 shareholders, in which case it may submit the information that Federal 10k reporting companies are required to report under 17 CFR 229.401 and list the names of any person or entity holding any ownership share that is in excess of 5% in place of the prescribed disclosure.
The Chief Procurement Officer will prescribe the form, which must include at least the names, addresses, and dollar or proportionate share of ownership of each person identified in this Section, their instrument of ownership or beneficial relationship, and notice of any potential conflict of interest resulting from the current ownership or beneficial relationship of each person identified in this Section having, in addition, any of the following relationships:

A) State employment, currently or in the previous 3 years, including contractual employment services.

B) State employment of spouse, father, mother, son, or daughter, including contractual employment for services in the previous 2 years.

C) Elective status: the holding of elective office of the State of Illinois, the government of the United States, any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois currently or in the previous 3 years.

D) Relationship to anyone holding elective offices currently or in the previous 2 years: spouse, father, mother, son, or daughter.

E) Appointive office: the holding of any appointive government office of the State of Illinois, the United States of America, or any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois, which office entitles the holder to compensation in excess of expenses incurred in the discharge of that office currently or in the previous 3 years.

F) Relationship to anyone holding appointive office currently or in the previous 2 years: spouse, father, mother, son, or daughter.

G) Employment, currently or in the previous 3 years, as or by any registered lobbyist of the State government.

H) Relationship to anyone who is or was a registered lobbyist in the previous 2 years; spouse, father, mother, son, or daughter.

J) Relationship to anyone (spouse, father, mother, son, or daughter) who is or was a compensated employee in the last 2 years of any registered election or re-election committee registered with the Secretary of State or any county clerk in the State of Illinois, or any political action committee registered with either the Secretary of State or the Federal Board of Elections.

c) The disclosure in subsection (b) is not intended to prohibit or prevent any contract. The disclosure is meant to fully and publicly disclose any potential conflict fully and publicly to the Chief Procurement Officer, Purchasing Officers, their designees, and executive officers so they may adequately discharge their duty to protect the State.

d) When a potential for a conflict of interest is identified, discovered, or reasonably suspected, the Chief of Staff shall review and comment on it in writing. The Chief of Staff shall provide his comment to the Chief Procurement Officer who must determine in writing whether to void or allow the contract, bid, proposal or response weighing the best interest of the State of Illinois. The comment and determination must be part of the procurement file.

e) These thresholds and disclosure do not relieve the Chief Procurement Officer, Purchasing Officers, or their designees from reasonable care and diligence for any contract, bid, proposal or response. The Chief Procurement Officer, Purchasing Officers, or their designees shall use any reasonably known and publicly available information to discover any undisclosed potential conflict of interest and act to protect the best interest of the State of Illinois.

f) Inadvertent or accidental failure to make any disclosure required by this Section will render the contract, bid, proposal, response or relationship voidable by the Chief Procurement Officer if he or she deems it in the best interest of the State of Illinois and, at his or her discretion, may be cause for barring from future contracts, bids, proposals, responses or relationships with the State for a period of up to 2 years.

g) Intentional, willful or material failure to make any disclosure required by this Section will render the contract, bid, proposal, response or relationship voidable by the Chief Procurement Officer if he or she deems it to be in the best interest of the State of Illinois and will result in suspension from future contracts, bids, proposals, responses or relationships for a period of not less than 2 years and not more than 10 years. Reinstatement after 2 years and before 10 years must be reviewed and commented on in writing by the Chief of Staff. The Chief of Staff must provide the review to the Chief Procurement Officer who must rule in writing whether and when to reinstate. The comment and determination must be part of the procurement file.

h) In addition, all disclosures must note any other current or pending contracts, leases, bids, proposals, responses or other ongoing procurement relationships the bidding, proposing, or responding entity has with any other unit of State government and must clearly identify the unit and the contract, lease, bid, proposal, response or other relationship.

i) The contractor or bidder has a continuing obligation to supplement the disclosure required by this Section throughout the bidding process or during the term of any contract. [30 ILCS 500/50-35(i)]

j) If a bid or offer is received from a responsive bidder, offeror, vendor, contractor, or subcontractor with an annual value of more than $100,000 and the bidder, offeror, vendor, contractor, or subcontractor has an active contract with that same entity and already has submitted their financial disclosures and potential conflicts of interest within the last 12 months, the bidder, offeror, vendor, contractor, or subcontractor may submit a signed affidavit attesting that the original submission of its financial disclosures and potential conflicts of interests has not been altered or changed. The form and content of the affidavit shall be prescribed by the applicable chief procurement officer. [30 ILCS 500/50-35(j)]

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.5037 Vendor Registration and Certification and Prohibition on Political Contributions

a) Introduction

Illinois law (Section 9-35 of the Election Code [10 ILCS 5] and Sections 20-160 and 50-37 of the Code) (the statutes) restricts political contributions by vendors and affiliated entities; requires registration with the Illinois State Board of Elections (ISBE); and requires solicitation and contract certifications relative to the requirements of the law. This Section supplements requirements found in the statutes and does not excuse compliance with any of those requirements.

b) General Registration Requirements

These requirements apply to contracts, bids and proposals that are subject to this Part.

A) Bids/proposals referenced in this Section are those submitted in response to a competitive solicitation that is posted on or after January 1, 2009, regardless of the value assigned to the procurement.

B) Bids and proposals include pending bids and proposals.

D) This value is calculated on a calendar-year basis.

On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/proposals. Vendors must register with SBEL when the vendor determines that the value of the contracts and bids/proposals meets the threshold for registration.
An "executive employee" means:

A) the President, Chairman of the Board or Chief Executive Officer of a business entity and any other individual who fulfills equivalent duties as the President, Chairman of the Board or Chief Executive Officer of a business entity.

c) Bids and Proposals

The CPO, or his or her designee, shall determine whether a business entity is required to register with SBEL and, if so, whether the business entity is in compliance with the registration requirements on the date the bid or proposal is due.
If the CPO determines that a business entity is required to register with SBEL and the business entity is not in compliance with the registration requirements, then the CPO shall not accept the business entity's bid or proposal.

d) Contracts

A copy of the Registration Certificate must be in the procurement file as set forth in this subsection (d), unless the vendor certifies it is not required to register.

For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals exceeds $50,000, the vendor must provide documentation of vendor compliance upon request and make the appropriate contract certification, if it has not already done so. The Registration Certificate or other evidence of vendor compliance may be provided by reference to and incorporation of the vendor's prequalification by the CPO.
For indefinite quantity/estimated value contracts, a vendor who is otherwise not required to register shall register with SBEL when the value of orders placed pursuant to an indefinite/estimated value contract plus all other contracts and bids/proposals exceeds $50,000.
For contract amendments, if the value of the amendment, by itself or in combination with the contract being renewed plus other contracts and bids/proposals, exceeds $50,000, the vendor must provide the Registration Certificate and make the appropriate contract certification, if it has not already done so.
Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications. If any violation by the vendor is not cured within 7 days after receipt of notification of the violation, the contract is voidable by the State without penalty.
Contract certification required by the statutes shall be included in or added to each contract that must be filed with the State Comptroller pursuant to Section 20-80 of the Code and those written, two-party contracts that need not be filed with the Comptroller. The Treasurer may require written confirmation of the rule-imposed certification at any time.

e) Voidable Contracts

Every solicitation issued and contract executed on or after January 1, 2009 shall contain a statement that the contract is voidable if the bidder, offeror or contractor fails to comply with Section 20-160 of the Code.

f) Prohibited Political Contributions

Upon discovery of a political contribution that is potentially prohibited by Section 50-37 of the Code, the CPO, within 5 business days, shall send a letter requesting response from the business entity that made the potentially prohibited contribution, acknowledging or denying that the contribution was prohibited.
If the CPO determines that a political contribution was prohibited, all contracts held by the contributing business entity are voidable, and the CPO shall determine if the circumstances surrounding the prohibited political contribution warrant the voiding of any of these contracts.
If a business entity violates Section 50-37(b) of the Code three or more times within a 36 month period, the CPO shall void all contracts with the business entity and the business entity shall be prohibited from responding to any solicitation issued by the Treasurer or entering into a contract with the Treasurer for 3 years from the date of the last violation.
If the CPO determines that a prohibited political contribution is grounds to suspend a business entity pursuant to this Section, the controversy will be referred to the Chief Legal Counsel pursuant to Section 1400.4010.

g) Notice

Notice of each violation of Section 50-37 of the Code and any penalty imposed by the CPO or SBEL for each violation shall be published on the Treasurer's Web Site.
The CPO shall directly notify a political committee in receipt of a prohibited political contribution that payment equal to the amount of the contribution is due the State of Illinois within 30 days after publication of the violation on the Treasurer's Web Site.
If an amount owed by a political committee as a result of a prohibited political contribution is not paid and is deemed uncollectible for any reason, notice of the political committee's nonpayment shall be published on the Treasurer's Web Site.

History

Source: Added at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.5040 Reporting Anticompetitive Practices

When, for any reason, any vendor, bidder, proposer, respondent or employee of the Treasurer's office, including the Chief Procurement Officer, suspects collusion or other anticompetitive practice among any bidders, proposers, respondents or employees of the Treasurer's office, a notice of the relevant facts must be transmitted to the Attorney General, the Inspector General, and the Chief Procurement Officer.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.5045 Confidentiality

The Chief Procurement Officer and designees are subject to immediate dismissal and may be subject to criminal prosecution for willfully using or allowing the use of specifications, procurement documents or proprietary information to compromise the fairness or integrity of the procurement or contract process.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.5050 Insider Information

It is unlawful for the Treasurer or any employee of the Treasurer's office to knowingly use confidential information available only by virtue of that office or employment for actual or anticipated gain for themselves or another person.

44 Ill. Adm. Code 1400.5055 Additional Provisions

This Part is subject to applicable provisions of the following Acts:

a) Article 33E of the Criminal Code of 1961 [720 ILCS 5/Art. 33E];

b) the Illinois Human Rights Act [775 ILCS 5];

c) the Discriminatory Club Act [775 ILCS 25];

d) the Illinois Governmental Ethics Act [5 ILCS 420];

e) the State Prompt Payment Act [30 ILCS 540];

f) the Public Officer Prohibited Activities Act [50 ILCS 105];

g) the Drug Free Workplace Act [30 ILCS 580];

h) the Procurement of Domestic Products Act [30 ILCS 517];

i) the International Anti-Boycott Certification Act [30 ILCS 582];

j) the State Prohibition of Goods from Forced Labor Act [30 ILCS 583];

k) the State Prohibition of Goods from Child Labor Act [30 ILCS 584]; and

l) the Information Technology Accessibility Act [30 ILCS 587].

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.5060 Other Violations

Any employee of the Treasurer's office, including the Chief Procurement Officer, who willfully violates or allows the violation of this Part is subject to immediate dismissal.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.5065 Supply Inventory

The Treasurer's office should inventory or stock no more equipment, supplies, commodities, articles, and other items than are reasonably necessary for the efficient functioning of the Treasurer's office. The Treasurer's office must seek to have no more than a 12-month supply of any equipment, supplies, commodities, or other items, unless there is a justifiable reason for doing so.

44 Ill. Adm. Code 1400.5090 Annual Value, Certification

All contracts under this Part with an annual value that exceeds $50,000 shall be accompanied by Standard Illinois Certifications in a form prescribed by the Chief Procurement Officer. The Chief Procurement Officer may utilize a form prescribed by the Chief Procurement Officer for General Services for this purpose.

History

Source: Added at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.5505 Concessions

a) All Concessions, including the assignment, license, sale, or transfer of interests in or rights to discoveries, inventions, patents, or copyrightable works, may be entered into by the Treasurer's office, if the concession is reduced to writing and awarded by one of the procurement methods described in this Part, except that the contract will be awarded to the highest and best offeror. The duration and terms of concessions and leases of State property must be in accordance with this Part.

b) Proposed concessions or leases of State property under this Part must be coordinated with CMS to ensure compliance with the State Property Control Act and rules implementing that Act (44 Ill Adm Code 5000).

44 Ill. Adm. Code 1400.6005 Severability

If any provision of this Part or any application thereof is held invalid, the invalidity will not affect other provisions or applications of this Part that can be given effect without the invalid provision or application.

44 Ill. Adm. Code 1400.6010 Government Furnished Property (repealed)

History

Source: Repealed at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.6015 Inspections

a) Inspection of Plant or Site

The State may enter a contractor's or subcontractor's plant or place of business to:

inspect supplies or services for acceptance by the State under the terms of a contract;
audit the books and records of any contractor or subcontractor under Section 1400.4020(d);
investigate an action to suspend a person from consideration for award of contracts in accordance with Section 1400.4020;
determine whether the standards of responsibility have been met or are capable of being met; and
determine if the contract is being performed in accordance with its terms.

b) Inspection and Testing of Supplies and Services

Solicitation and Contractual Provisions. Treasurer's office contracts may provide that the Treasurer's office may inspect supplies and services at the contractor's or subcontractor's facility and perform tests to determine whether they conform to solicitation requirements, or, after award, to contract requirements, and are therefore acceptable. The inspections and tests are conducted in accordance with the terms of the solicitation and contract.
Procedures for Trial Use and Testing. The Chief Procurement Officer may establish operational procedures governing the testing and trial use of equipment, material, and other supplies by the Treasurer's office, and the application of resulting information and data to specifications or procurements.

c) Conduct of Inspections

Inspectors. Inspections or tests are performed so as not to unduly delay the work of the contractor or subcontractor. No inspector other than the Chief Procurement Officer may change any provision of the specifications or the contract without written authorization of the Chief Procurement Officer. The presence or absence of an inspector does not relieve the contractor or subcontractor from any requirements of the contract.
Location. When an inspection is made in the plant or place of business of a contractor or subcontractor, the contractor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.
Time. Inspection or testing of supplies and services performed at the plant or place of business of any contractor or subcontractor must be performed at reasonable times.

44 Ill. Adm. Code 1400.6020 Contracts for Food Donation; Food Donation Policy

a) The Treasurer's office shall not enter into a contract to purchase food with a bidder or offeror if the bidder's or offeror's contract terms prohibit the public entity from donating food to food banks, including, but not limited to, homeless shelters, food pantries, and soup kitchens.

b) The Treasurer's office shall permit the donation of leftover food purchased with State funds.

History

Source: Amended at 48 Ill. Reg. 2924, effective February 7, 2024

44 Ill. Adm. Code 1400.6025 Postage Stamps

All postage stamps purchased from State funds must be perforated for identification purposes.

44 Ill. Adm. Code 1400.6030 Printing

All books, pamphlets, documents, and reports published through or by the Treasurer's office must have printed thereon "Printed by the authority of the State of Illinois", the date of each publication, the number of copies printed, and the printing order number. No publication may have written, stamped, printed, or attached to it "Compliments of . . . (naming a person)" or any words of similar import.

44 Ill. Adm. Code 1400.6035 Annual Reports

Every printed annual report produced by the Treasurer's office must bear a statement indicating whether it was printed by the State of Illinois or by contract and indicating the printing costs per copy and the number of copies printed.

History

Source: Amended at 40 Ill. Reg. 13847, effective September 23, 2016

44 Ill. Adm. Code 1400.6040 No Waiver of Sovereign Immunity

Nothing in this Part will be deemed to be a waiver of sovereign immunity.

History

Source: Added at 48 Ill. Reg. 2924, effective February 7, 2024

Chapter XXII Office of the Governor

Part 1500 Office of the Governor Procurement Rules

44 Ill. Adm. Code 1500.01 Title

This Part may be cited as the Office of the Governor Procurement Rules.

44 Ill. Adm. Code 1500.05 Policy

All procurements by the Office of the Governor (OG) shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with statute, this Part and other applicable rules.

44 Ill. Adm. Code 1500.10 Application

a) Articles 1, 15, 20, 25, 35, 40, 45, 50, and 53 of the Illinois Procurement Code [30 ILCS 525] (the Code) will be referenced herein as though applicable to the OG, and all procurements of goods or services conducted by the OG or by CMS on behalf of the OG shall be substantially in accordance with those provisions of the Code, except to the extent otherwise provided in this Part.

b) For the purposes of the Code and this Part, any reference to Chief Procurement Officer (CPO) means the Governor or his designee except that for the purpose of issuing State debt, the Director of the Bureau of the Budget shall be the CPO. The Governor may appoint one or more designees.

c) The Code and this Part apply to those procurements for which the vendors were first solicited on or after July 1, 1998.

d) Procurements for which vendors were first solicited on or before June 30, 1998, shall be conducted pursuant to legal requirements in effect at the time of the solicitation. The terms and conditions and the rights and obligations under contracts resulting from such procurements shall not be impaired.

e) A solicitation occurs on or before June 30, 1998, as follows:

When advertising was required in the Official State Newspaper, the first advertisement must run no later than June 30, 1998.
When advertising was not required:

A) if the procurement was advertised, even though advertising was not required, the first advertisement must have run no later than June 30, 1998;

B) if the procurement was by direct solicitation by mail, the solicitation must have been postmarked or placed in the control of a private carrier no later than June 30, 1998;

C) if the procurement was by direct solicitation by fax, the fax must show a transmission date no later than June 30, 1998;

D) if the procurement was solicited in-person or by telephone, the solicitation must have occurred no later than June 30, 1998, and the State officer or employee who made the solicitation must state in writing when the procurement was discussed and must name the party with whom the discussion took place.

In all circumstances, the solicitations must be for the procurement of particular needs. A general discussion to determine if there is any interest on the part of a State agency in the supplies or services of a vendor or vendors, or on the part of a vendor or vendors in providing the supplies or services, is not considered a solicitation.

f) The Code and this Part do not apply to:

contracts between the State and its political subdivisions or other governments, or between State governmental bodies except as specifically provided in the Code. (For purposes of this subsection (f)(1), "governmental bodies" includes the State universities and their governing boards, community colleges and their governing boards, community colleges and their governing boards and school districts. This provision applies to contracts between governmental entities; it does not allow State agencies to utilize contracts established by other governmental entities and school districts.);
grants;
hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual;
collective bargaining contracts;
purchase of real estate; or
contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the chief legal counsel to the Governor shall give his or her prior approval. [30 ILCS 500/1-10] Anticipated litigation is that which the OG may prosecute or defend before a court or administrative body and actions necessary to prepare for and conduct the effective legal prosecution or defense of litigation, including, but not limited to, contracting for expert witnesses.

44 Ill. Adm. Code 1500.15 Definition of Terms Used in This Part

As used throughout this Part, terms defined in the Illinois Procurement Code shall have the same meaning as in the Code and as further defined below, and each term listed in this Section shall have the meaning set forth below unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in that Section.

"Bid" − The response to an Invitation for Bids.

"Bidder" − Any person who submits a bid.

"Brand Name or Equal Specification" − A specification that uses one or more manufacturer's names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet State requirements, and that allows the submission of equivalent products.

"Brand Name Specification" − A specification limited to one or more items by manufacturers' names or catalogue numbers.

"Code" − The Illinois Procurement Code [30 ILCS 500].

"Concession" − The right or a lease to engage in a certain activity for profit on the lessor's premises (e.g., a refreshment or parking concession).

"Consulting services" − services provided by a business or person as an independent contractor to advise and assist an agency in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of a State agency. The services may or may not rise to the level of professional and artistic as defined in the Code and this Part.

"Contract" − A contract may be in written or oral form. The term contract as used in the Code and this Part includes any agreement or lease that requires the payment of State funds by the OG in exchange for goods or services but it does not include bonds issued by or on behalf of any State agency or contracts relating to bonds issued by or on behalf of a State agency when the contractor or vendor is neither selected nor paid by the State agency.

"Contractor" or "Vendor" − The terms contractor and vendor are used interchangeably for purposes of the Code and this Part.

"Day" − Calendar day. In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a State holiday, in which event the period shall run to the end of the next business day.

"Items" − Anything that may be procured under this Code.

"Procurement Officer" − The Chief Procurement Officer (CPO) or appropriate State Purchasing Officer (SPO) who conducts the particular procurement, or a designee of either.

"Proposal" − The response to a Request for Proposals.

"Responsive Bidder" − A person who has submitted a bid that conforms in all material respects to the Invitation for Bids. [30 ILCS 500/1-85]

"Responsible Offeror" − A person who has submitted an offer that conforms in all material respects to the Request for Proposals.

"Specification" − Any description of the physical, functional, or performance characteristics, or of the nature of, a supply or service. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply or service item for delivery. Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout this Part.

"Specification for a Common or General Use Item" − A specification that has been developed and approved for repeated use in procurements.

"State Agency" − Includes all boards, commissions, agencies, institutions, authorities, and bodies politic and corporate of the State, created by or in accordance with the constitution or statute, of the executive branch of State government and does include colleges, universities, and institutions under the jurisdiction of the governing boards of the University of Illinois, Southern Illinois University, Illinois State University, Eastern Illinois University, Northern Illinois University, Western Illinois University, Chicago State University, Governors State University, Northeastern Illinois University, and the Board of Higher Education. However, this term does not apply to public employee retirement systems or investment boards that are subject to fiduciary duties imposed by the Illinois Pension Code or to the University of Illinois Foundation. "State Agency" does not include units of local government, school districts, community colleges under the Public Community College Act, and the Illinois Comprehensive Health Insurance Board. [30 ILCS 500/1-15.100]

"Supplies" − All personal property, including but not limited to equipment, materials, printing, and insurance, and the financing of those supplies. [30 ILCS 500/1-15.110]

"Unsolicited Offer" − Any offer other than one submitted in response to a solicitation.

44 Ill. Adm. Code 1500.25 Property Rights

Receipt of an Invitation for Bids or other procurement document, or submission of any response thereto, or other offer, confers no right to receive an award or contract, nor does it obligate the State in any manner.

44 Ill. Adm. Code 1500.525 Rules

Procurement under the jurisdiction of the OG shall be conducted substantially in accordance with the Code and in accordance with this Part except as provided in this Section. The OG may, in the same manner as State agencies under the jurisdiction of the CPO of CMS, without soliciting independent bids, proposals, or responses, procure goods and services from Master Contracts or other centralized purchasing arrangements established by CMS from vendors selected by CMS in accordance with a competitive selection process established by CMS under the Code.

44 Ill. Adm. Code 1500.1005 Exercise of Procurement Authority

a) The CPO shall ensure that all procurements of the OG are in accordance with the Code and this Part and are in the best interests of the State. For procurements other than for issuance of State debt, the CPO may request that CMS conduct such procurements on behalf of the OG. Such procurements conducted by CMS on behalf of the OG shall be carried out in accordance with the Code and rules adopted by CMS thereunder. Additionally, the CPO may delegate to the CPO of CMS the authority to exercise on behalf of the CPO or any Purchasing Officer any right, responsibility, duty or obligation vested in the CPO or any Procurement Officer under the Code or this Part.

b) The CPO may appoint one or more employees under his direction and supervision to serve as a SPO.

44 Ill. Adm. Code 1500.1510 Illinois Procurement Bulletin

a) Notice of any procurement action, by or on behalf of the OG, that would be required by the Code to be published in the Illinois Procurement Bulletin if the OG were a "State Agency" will be forwarded to CMS for inclusion in the appropriate volume of the Bulletin.

b) The Bulletin may be supplemented at the discretion of the OG with publication elsewhere, including in the Official State Newspaper selected by CMS.

c) The notice shall contain at least the following information:

the Office of the Governor;
a brief purchase description;
a procurement reference number, if used;
the date the procurement is first offered;
the date, time, and location for making submissions;
the method of source selection;
the name of the Procurement Officer in charge; and
instructions on how to obtain detailed information.

d) Notice of each contract awarded that was subject of a notice in subsection (b) above shall be placed in the Bulletin. This notice shall contain at least the following information:

the information published in subsection (b) above;
the name of the vendor selected for award;
the contract price;
the number of unsuccessful responsive vendors; and
other disclosures required to be published in the Bulletin.

e) The following information regarding emergency procurements shall be published in the Bulletin within 14 days after commencement of performance under the emergency contract:

name of the procuring agency (and using agency, if different);
name of the vendor selected for award;
brief description of what the vendor will do or provide;
total price (if only an estimate is known, it shall be published, but a subsequent notice repeating all required information shall be published when the final amount is known);
reasons for using the emergency method of source selection; and
name of the Procurement Officer in charge.

f) The following information in regard to sole source procurements shall be published in the Bulletin at least 14 days prior to entering into the contract with the designated sole source vendor:

name of the procuring agency (or using agency, if different);
name of the vendor;
brief description of what the vendor will do or provide; and
name of the Procurement Officer in charge.

44 Ill. Adm. Code 1500.1570 Error in Notice

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin.

44 Ill. Adm. Code 1500.1580 Direct Solicitation

In addition to giving notice in the Bulletin, OG may directly contact prospective vendors by providing copies of Invitations for Bids, Requests for Proposals, or other procurement information. Direct solicitation may be oral or in writing, but care should be taken to ensure that all vendors solicited in this manner receive the same information as provided to others. No direction solicitation shall be made prior to the date any required notice first appears in the Bulletin.

44 Ill. Adm. Code 1500.2005 General Provisions

a) Late Bids or Proposals, Late Withdrawals and Late Modifications

Definition. Any bid or proposal received after the time and date for receipt, and at other than the specified location, is late. A bid that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered, but the agency shall not be responsible for ensuring such subsequent delivery. Any withdrawal or modification of a bid or proposal received after the time and date set for opening of bids or proposals is late. If received at other than the specified location, the submission is late.
Treatment. No late bid or proposal, late modification, or late withdrawal will be considered unless the CPO, and not a designee, determines it would have been timely but for the action or inaction of State personnel directly serving the procurement activity (e.g., providing the wrong address).
Records. Records shall be made and, in accordance with the State Records Act [5 ILCS 160], kept for each late bid or proposal, late modification, or late withdrawal.
Other Submissions. Any other submission that has a time or date deadline shall be treated in the same manner as a late bid.

b) Extension of Time

The CPO may, prior to the date or time for submitting or modifying a bid or proposal, extend the date or time for the convenience of the State.
After opening bids or proposals, the CPO may request bidders or offerors who submitted timely bids or proposals to extend the time during which the State may accept the bids or proposals, provided that, with regard to bids, no other change is permitted. This extention does not provide an opportunity for others to submit bids or proposals.

c) Electronic and Facsimile Submissions

The Invitation for Bids or Request for Proposals may state that electronic and facsimile machine submissions will be considered if they are received at the designated office by the time and date set for receipt. Any required attachments will be submitted as stated in the IFB or RFP.
Electronic submissions authorized by specific language in the IFB or RFP will be opened in accordance with electronic security measures in effect at the purchasing agency at the time of opening. Unless the electronic submission procedures provide for a secure receipt, vendor assumes risk of premature disclosure due to submission in unsealed form.
Fax submissions authorized by specific language in the IFB or RFP will be placed in a sealed container upon receipt and opened as other submissions. Vendor assumes risk of premature disclosure due to submission in unsealed form.

d) Intent to Submit

The Invitation for Bids or the Request for Proposals may require that vendors submit, by a certain time and date, a notice of their intent to submit a bid or proposal in response to the IFB or RFP. Bids and proposals submitted without complying with the notice of intent requirement may be rejected.

e) Only One Bid or Proposal Received

If only one bid or proposal is received, an award may be made to the single bidder or offeror if the Procurement Officer finds that the price submitted is fair and reasonable, and that either other prospective bidders had reasonable opportunity to respond or there is not adequate time for resolicitation. Otherwise:

new bids or offers may be solicited, including under sole source (Section 1500.2025) or emergency (Section 1500.2030) procedures; or
the procurement may be canceled.

f) Alternate or Multiple Bids or Proposals

Alternate bids or proposals may be accepted if:

A) permitted by the solicitation and in accordance with instructions in the solicitation; or

B) only one vendor responded, in which case the alternate submission may be evaluated and treated in accordance with Section 1500.2025 (Sole Economically Feasible Source Procurement) of this Part; or

C) the low bidder, who has met all requirements of the solicitation, has provided a lower cost alternative that meets all of the material requirements of the specifications.

Multiple bids or proposals may be accepted if:

A) permitted by the solicitation and submitted in accordance with instructions in the solicitation; or

B) only one vendor responded; then, one or more of the submissions may be evaluated, provided that, in the case of bids, only the lowest cost bid meeting specifications may be considered.

If a vendor clearly indicates a primary submission among alternate or multiple bids or proposals, then that primary submission shall be considered for award as though it were the only bid or proposal submitted by the vendor.

g) Multiple Items

An Invitation for Bids or Request for Proposals may call for pricing of multiple items of similar or related type with award based on individual line item, group total of certain items, or grand total of all items.

h) "All or None" Bids or Proposals

All or none bids or proposals may be accepted if the evaluation shows an all or none award to be the lowest cost or best value of those submitted.

i) Conditioning Bids or Proposals Upon Other Awards

Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall:

be rejected unless the vendor removes the condition; or
be evaluated and award made to that vendor if the vendor is also independently evaluated as the winner of the other IFBs or RFPs, provided the agency need not delay procurement actions to accommodate the vendor's all or none condition.

j) Unsolicited Offers

Processing of Unsolicited Offers. The CPO may consider unsolicited offers.
Conditions for Consideration. An unsolicited offer must be in writing and must be sufficiently detailed to allow a judgment to be made concerning the potential utility of the offer to the State.
Award. An award may not be made based on an unsolicited offer in place of the notice and competition requirements of the Code and this Part except if that unsolicited offer meets the requirements for a small (Section 1500.2020), sole source (Section 1500.2025), or emergency (Section 1500.2030) procurement.

k) Clarification of Bids and Proposals

The CPO may request that a vendor clarify its bid or proposal as a part of the evaluation process. A vendor shall not be allowed to materially change its bid or proposal in response to a request for clarification. A clarification is not an opportunity to make changes or for submission of best and finals as authorized elsewhere in this Part.

l) Extension of Time on Indefinite Quantity Contracts

m) Increase in Quantity on Definite Quantity Contracts

The quantity that may be ordered from a definite quantity contract without additional notice and competition may be increased by up to 20% provided the CPO determines that separate bidding for the additional quantity is not likely to achieve lower pricing. A particular procurement may specify a different percentage.
The quantity may be increased by any percentage provided the dollar value of the increase does not exceed the applicable small purchase (Section 1500.2020) threshold.

n) Subsequent Purchase Request

If, within 30 days after making an award to a particular vendor pursuant to a competitive sealed bid by or on behalf of the OG, the OG wishes to make another purchase request for the same item and for the same or lesser quantity, the CPO may contract with that vendor on the same terms and conditions, including price, without additional notice and competition, if such contract is acceptable to the vendor.

o) Assignment, Novation or Change of Name

Assignment. No State contract is transferable, or otherwise assignable, without the written consent of the CPO, provided, however, that a vendor may assign money receivable under a contract after due notice to the State. Assignment may require the execution of a contract with the assignee and in such cases the assignee must meet all requirements for contracting with the State.
Recognition of a Successor in Interest; Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the State;

C) the transferor waives all rights under the contract as against the State; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the State, furnish a satisfactory performance bond.

Change of Name. A vendor may submit a written request to change the name in which it holds a contract with the State. The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.
Reports. All change of name or novation agreements under this subsection (o) shall be reported to the CPO within 30 days after the date the agreement becomes effective so that the bid list may be updated.

p) Contracting for Installment Purchase Payments, Including Interest Contracts may provide for installment purchase payments, including interest charges, over a period of time. The interest rate may not exceed that established by law, including the Bond Authorization Act [30 ILCS 305].

q) Use of Source Selection Method that is Not Required

If the OG uses a method of source selection that it is not, by law, required to use (e.g., use of a competitive sealed bid for a small purchase), it is not bound to strict compliance with the Code and rules governing the method of source selection used.

r) Vendor Signature

A bid or proposal submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the Procurement Officer within the time specified by that officer.

s) Stringing

Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited.

t) Confidential Data

Vendors must clearly identify any information that is exempt from the disclosure requirement of the Illinois Freedom of Information Act [5 ILCS 140] and must request special handling of that material.

44 Ill. Adm. Code 1500.2010 Competitive Sealed Bidding

a) Application

b) The Invitation for Bids

Use. The Invitation for Bids is used to initiate a competitive sealed bid procurement.
Content. The Invitation for Bids shall include, at a minimum, the following:

B) the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description; and

C) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

Incorporation by Reference. The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where such documents can be obtained.

c) Bidding Time

Bidding time is the period of time between the date of notice or distribution of the Invitation for Bids and the time and date set for receipt of bids. In each case, bidding time will be set to provide bidders a reasonable time to prepare their bids. A minimum of 14 days shall be provided unless a shorter time is authorized by the Code or this Part.

d) Bidder Submissions

Bid Form. The Invitation for Bids may include a form or format for submitting bids. If a form or format is specified, vendor shall submit bids as instructed.
Bid Samples and Descriptive Literature

A) Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

B) Unsolicited bid samples or descriptive literature is submitted at the bidder's risk, may not be examined or tested, will not be deemed to vary any of the provisions of the Invitation for Bids, and may not be utilized by the vendor to contest a decision or understanding with the OG.

e) Public Notice

Publication. Every procurement for supplies and services in excess of the small purchase amount that must be procured using an Invitation for Bids shall be publicized in the Illinois Procurement Bulletin (see Section 1500.1510).
Public Availability. A copy of the Invitation for Bids shall be made available for public inspection.
Distribution. Invitations for Bids or Notices of the Availability of Invitations for Bids may be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition. Notices of Availability shall, at a minimum, indicate where Invitations for Bids may be obtained; generally describe what is needed; and indicate the due date for bids. Where appropriate, the Procurement Officer may require payment of a fee or a deposit for supplying the Invitation for Bids.

f) Pre-Bid Conference

A pre-bid conference may be conducted to enhance understanding of the procurement requirements. The pre-bid conference shall be announced as a part of the Invitation for Bids notice. The conference may be designated as "attendance mandatory" or "attendance optional". The conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Nothing stated at the pre-bid conference shall change the Invitation for Bids unless a change is made by written modification to the Invitation for Bids. Amendments shall be supplied to all those prospective bidders known to have received an Invitation for Bids. If the conference is mandatory, the amendment shall be supplied to attendees only.

g) Amendments to Invitations for Bids

Form. Amendments to Invitations for Bids shall be clearly identified and shall reference the portion of the IFB it amends.
Distribution. Amendments shall be made available to all prospective bidders known to have received an Invitation for Bids.
Timeliness. Amendments shall be made available within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, the amendment shall extend the response time. If necessary, the response time may be extended by fax or telephone and confirmed in the amendment.

h) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the Invitation for Bids prior to the time and date set for bid opening.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

i) Receipt, Opening and Recording of Bids

Receipt. Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening. If a bid is opened in error, the file shall so state.
Opening and Recording

A) Bids and modifications shall be opened publicly at the time, date, and place designated in the Invitation for Bids. Opening shall be witnessed by a State employee or any other person present, but the person opening bids shall not serve as witness. The name of each bidder, the bid price, and such other information as is deemed appropriate by the Procurement Officer shall be recorded and the name of each bidder read aloud or otherwise made available. The name of the witness shall also be recorded at the opening.

B) The winning bid shall be available for public inspection after award, along with the record of each unsuccessful bid.

j) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the Invitation for Bids, except as permitted in the Code and this Part. The Invitation for Bids shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder. No bid shall be evaluated for any requirements or criteria that are not disclosed in the Invitation for Bids.
Responsibility. Responsibility of prospective vendors is covered by Section 1500.2045 (Responsibility) of this Part.
Responsiveness. A bid must conform in all material respects to the Invitation for Bids.

A) Product or Service Acceptability. The Invitation for Bids shall set forth any evaluation criteria to be used in determining product or service acceptability. It may require the submission of bid samples, descriptive literature, technical data, references, licenses, or other information or material. It may also provide for accomplishing any of the following prior to award:

i) inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

ii) examination of such elements as appearance, finish, taste, or feel;

iii) other examinations to determine whether it conforms with any other purchase description requirements.

Determination of Lowest Bidder. Following determination of product or service acceptability as set forth in this subsection (j), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the Invitation for Bids. Only objectively measurable criteria that are set forth in the Invitation for Bids shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost and ownership or life-cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible such evaluation factors shall be reasonable estimates based upon information the State has available concerning future use and shall provide for the equitable treatment of all bids. Pricing for optional supplies or services, or for renewal terms, may be considered, particularly when the pricing for such items or terms is unbalanced when compared to other pricing in the bid.
Price Negotiation. Negotiations are permitted with the low bidder to obtain a lower price for the item bid.

k) Documentation of Award

Following award, a record showing the successful bidder shall be made a part of the procurement file.

l) Award to Other Than Low Bidder

The Procurement Officer may award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest. The name of the bidder selected, pricing, and the reasons for selecting this bidder instead of the low bidder must be published in the Bulletin.
This action may be appropriate when the difference in quality or speed of delivery is so great as compared to the difference in price, and considering the needs of the agency, that a best value award is justified. However, if the difference in price is significant, the Procurement Officer may not utilize this provision.

m) Publicizing Award

The successful bidder shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication. In procurements over the small purchase limit set in Section 1500.2020 (Small Purchases) of this Part, notice of award shall be published in the Bulletin.

44 Ill. Adm. Code 1500.2012 Multi-Step Sealed Bidding

a) Definition. Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the State, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered.

b) Conditions for Use. The multi-step sealed bidding method may be used when it is not practical to prepare initially a definitive purchase description that will be suitable to permit an award based on price. Multi-step sealed bidding may be used when it is considered desirable:

to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and
to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, where appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description.

c) Pre-Bid Conference in Multi-Step Sealed Bidding

Prior to the submission or evaluation of unpriced technical offers, a pre-bid conference as contemplated by Section 1500.2010(f) (Pre-Bid Conference) may be conducted by the Procurement Officer.

d) Procedure for Phase One of Multi-Step Sealed Bidding

Form. Multi-step sealed bidding shall be initiated by the issuance of an Invitation for Bids in the form required by Section 1500.2010 (Competitive Sealed Bidding), except as hereinafter provided. In addition to the requirements set forth in Section 1500.2010, the multi-step Invitation for Bids shall state:

A) that unpriced technical offers are requested;

B) whether priced bids are to be submitted at the same time as unpriced technical offers; if they are, such priced bids shall be submitted in a separate sealed envelope;

D) the criteria to be used in the evaluation of the unpriced technical offers;

E) that the Procurement Officer may conduct oral or written discussions of the unpriced technical offers;

F) that the item being procured shall be furnished generally in accordance with the bidder's technical offer as found to be finally acceptable and shall meet the requirements of the Invitation for Bids.

Amendments to the Invitation for Bids. After receipt of unpriced technical offers, amendments to the Invitation for Bids shall be distributed only to bidders who submitted unpriced technical offers, and they shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the Procurement Officer, a contemplated amendment will significantly change the nature of the procurement, the Invitation for Bids may be canceled in accordance with Section 1500.2040 (Cancellation of Solicitation; Rejection of Bids or Proposals) of this Part and a new Invitation for Bids issued.
Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers submitted by bidders shall be opened in the presence of at least one witness. Such offers shall not be disclosed to unauthorized persons.
Evaluation of Unpriced Technical Offers. The unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the Invitation for Bids. The unpriced technical offers shall be categorized as:

A) acceptable;

B) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

C) unacceptable, in which case the Procurement Officer shall record in writing the basis for finding an offer unacceptable, notify the vendor and make it part of the procurement file.

The Procurement Officer may initiate phase two of the procedure if, in the Procurement Officer's opinion, there are sufficient acceptable unpriced technical offers to assure effective price competition in the second phase without technical discussions. If the Procurement Officer finds discussion of the technical offers is necessary, the Procurement Officer shall commence discussions of the unpriced technical proposals.
Discussion of Unpriced Technical Offers. The Procurement Officer may conduct discussions with any vendor who submits an acceptable or potentially acceptable technical offer. During the course of such discussions, the Procurement Officer shall not disclose any information derived from one unpriced technical offer to any other bidder. Any such bidder may submit supplemental information amending its technical offer at any time until the closing date established by the Procurement Officer. Such submission may be made at the request of the Procurement Officer or upon the bidder's own initiative.
Unacceptable Unpriced Technical Offer. When the Procurement Officer determines a bidder's unpriced technical offer to be unacceptable, such offeror shall not be afforded an additional opportunity to supplement its technical offer.

e) Procedure for Phase Two

Initiation. Upon the completion of phase one, the Procurement Officer shall either:

A) open priced bids submitted in phase one (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; or

B) if priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

Conduct. Phase two shall be conducted as any other competitive sealed bid procurement except:

A) no public notice need be given of this invitation to submit priced bids because such notice was previously given;

B) after award, the unpriced technical offer of the successful bidder shall be disclosed as follows: The Procurement Officer shall examine written requests of confidentiality for trade secrets and proprietary data in the technical offer of such bidder to determine the validity of any such requests. If the parties do not agree as to the disclosure of data, the Procurement Officer shall reject the offer. Such technical offer shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data; and

C) unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection.

44 Ill. Adm. Code 1500.2015 Competitive Sealed Proposals

a) Competitive Sealed Proposals may be used whenever permitted by the Code and as described in this Part.

b) The Competitive Sealed Proposal method of source selection may be used to procure the following categories (note that the following services, if they are professional and artistic, must be procured pursuant to Section 1500.2035 of this Part):

electronic data processing equipment, software, and services;
telecommunications equipment, software, and services;
consulting services; and
employee benefits and management of those benefits.

c) Competitive Sealed Proposals may be used on a case-by-case basis when it is determined by the Procurement Officer that competitive sealed bidding is either not practicable or not advantageous.

"Practicable" Distinguished from "Advantageous." As used in Section 20-15 (Competitive Sealed Proposals) of the Illinois Procurement Code and in this Section, "practicable" denotes what may be accomplished or put into practical application, and "advantageous" connotes a judgmental assessment of what is in the State's best interest. Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest. Before a procurement may be conducted by competitive sealed proposals, the Procurement Officer shall determine in writing that competitive sealed bidding is either not practicable or not advantageous to the State.
General Discussion

A) If competitive sealed bidding is not practicable or is not advantageous, competitive sealed proposals should be used.

B) The key element in determining whether use of a proposal is advantageous is the need for flexibility. The competitive sealed proposal method differs from competitive sealed bidding in two important ways:

i) it permits discussions with competing offerors and changes in their proposals, including price; and

ii) it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract.

When Competitive Sealed Bidding Is Not Practicable. Competitive sealed bidding is not practicable unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the Invitation for Bids. Factors to be considered in determining whether competitive sealed bidding is not practicable include:

A) whether the contract needs to be other than a fixed-price type;

B) whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

C) whether offerors may need to be afforded the opportunity to revise their proposals, including price;

D) whether award may need to be based upon a comparative evaluation, as stated in the Request for Proposals, of differing price, quality, and contractual factors in order to determine the most advantageous offering to the State. Quality factors include technical and performance capability and the content of the technical proposal; and

E) whether the primary consideration in determining award may not be price.

When Competitive Sealed Bidding Is Not Advantageous. A determination may be made to use competitive sealed proposals if it is determined that it is not advantageous to the State, even though practicable, to use competitive sealed bidding. Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

A) if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State; and

B) whether the factors listed in subsection (c)(3) of this Section are desirable, in conducting a procurement, rather than necessary; if they are, then such factors may be used to support a determination that competitive sealed bidding is not advantageous.

d) Content of the Request for Proposals

The Request for Proposals shall be prepared in accordance with Section 1500.2010 (Competitive Sealed Bidding), provided that it shall also include:

a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions; and
a statement of when and how price should be submitted.

e) Receipt and Registration of Proposals

Proposals and modifications shall be opened publicly at the time, date and place designated in the Request for Proposals. Opening shall be witnessed by a State employee or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that shall include the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service item offered. The record of proposals shall be open to public inspection after award of the contract.
Proposals and modifications shall be opened in a manner to avoid disclosing contents to competitors. Only State personnel and contractual agents may review the proposals prior to award.

f) Evaluation of Proposals

Evaluation Factors in the Request for Proposals. The Request for Proposals shall state all of the evaluation factors, including price, and their relative importance.
Evaluation. The evaluation shall be based on the evaluation factors set forth in the Request for Proposals. Factors not specified in the Request for Proposals shall not be considered. Numerical rating systems may be used but are not required.
Classifying Proposals. For the purpose of conducting discussions, proposals may be initially classified as:

A) acceptable;

B) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

C) unacceptable. Offerors whose proposals are unacceptable shall be so notified promptly.

g) Proposal Discussions with Individual Offerors

"Offerors" Defined. For the purposes of Section 20-15(f) (Competitive Sealed Proposals, Discussion with Responsible Offerors and Revisions to Proposals) of the Illinois Procurement Code and of this Section, the term "offerors" includes only those businesses submitting proposals that are acceptable or potentially acceptable. The term shall not include businesses that submitted unacceptable proposals.
Purposes of Discussions. Discussions are held to:

A) promote understanding of the State's requirements and the offerors' proposals; and

B) facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the Request for Proposals.

Conduct of Discussions. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. If during discussions there is a need for any substantial clarification of, or change to, the Request for Proposals, the Request shall be amended to incorporate such clarification or change. Auction techniques (revealing one offeror's price to another) and disclosure of any information from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.
Best and Final Offers. The Procurement Officer may request best and final offers from those offerors deemed acceptable after completion of any discussions. Best and final offers shall be submitted by a specified date and time. The Procurement Officer may conduct additional discussions or change the State's requirements and require another submission of best and final offers. The scope of the best and final and the number of vendors allowed to participate shall be defined by the Procurement Officer. If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediately previous offer will be construed as its best and final offer.

h) Award

An award shall be made by the Procurement Officer pursuant to a written determination showing the basis on which the award was found to be most advantageous to the State, based on the factors set forth in the Request for Proposals.

i) Publicizing Awards

The successful offeror shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication. When the award exceeds the small purchase limit set in Section 1500.2020 of this Part, notice of award shall be published in the Bulletin.

44 Ill. Adm. Code 1500.2020 Small Purchases

a) Application

Procurements of $25,000 or less for supplies or services, other than professional and artistic, and $30,000 or less for construction may be made using the method of source selection determined by the Procurement Officer to be most appropriate to the circumstances.
Procurements of less than $20,000 for professional and artistic services and that have a non-renewable term of one year or less may be made using the method of source selection determined by the Procurement Officer to be most appropriate to the circumstances.
Any change identified by the United States Department of Labor in the Consumer Price Index, as certified by CMS, for All Urban Consumers for the period ending December 31, 1998, and for each year thereafter shall be used to adjust the small purchase maximums that shall be applicable for the fiscal year beginning July 1, 1999. The small purchase maximums shall be likewise recalculated for each July 1 thereafter.

b) In determining whether a contract is under the limit, the value of the contract for the full term and all optional renewals, determined in good faith, shall be utilized. The stated value of the supplies or services, plus any optional supplies and services, shall be utilized. Where the term is calculated month-to-month or in a similar fashion, the amount shall be calculated for a twelve month period.

c) If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not to exceed limit applicable to the type of procurement (see subsection (a) above).

e) Procurement requirements shall not be artificially divided to avoid using the other source selection methods set forth in Section 20-5 of the Illinois Procurement Code.

f) If there is a repetitive need for small procurements of the same type, the Procurement Officer shall consider issuing a competitive sealed bid or proposal for procurement of those needs.

History

Source: Added at 23 Ill. Reg. 7740, effective June 29, 1999

44 Ill. Adm. Code 1500.2025 Sole Economically Feasible Source Procurement

a) Application

The provisions of this Part apply to procurement from a sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement is within the limit set in Section 1500.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 1500.2030 (Emergency Procurements) of this Part.

b) Conditions for Use of Sole Source Procurement

Sole source procurement is permissible when a requirement is available from only a single supplier or when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one potential bidder or offeror authorized to provide that item. The following are examples of circumstances that could necessitate sole source procurement:

the compatibility of equipment, accessories, replacement parts, or service is a paramount consideration;
a sole supplier's items are needed for trial use or testing;
a sole supplier's item is to be procured for commercial resale;
public utility regulated services are to be procured;
the item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;
the procurement of the media for advertising;
the procurement of art or entertainment services; and
changes to existing contracts (see subsection (c) below).

c) Changes

Changes to an existing contract that are germane and reasonable in scope and cost in relation to the original contract or program, that are necessary or desirable to complete the contract or program, and that can be best accomplished by the contract holder may be procured under this Section when the Procurement Officer determines that the cost of delay or disruption to the contract or program, and the cost of a new solicitation, clearly indicate that the existing vendor is the sole economically feasible source.
A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 1500.2020 of this Part or that is an emergency as defined in Section 1500.2030 of this Part may be made in accordance with procedures governing those Sections and need not comply with these sole source procedures. A change in the length of the contract that does not exceed 30 days and other minor, immaterial changes to the scope or administrative provisions of a contract shall not be considered changes subject to these sole source procedures.

d) Procurement Officer to Determine

The determination as to whether a procurement shall be made as a sole source shall be made by the Procurement Officer. Such determination and the basis therefore shall be in writing. Such officer may specify the application of such determination and the duration of its effectiveness.

e) Publication of Sole Source Notice

The Procurement Officer shall submit to CMS for publication in the Bulletin notice of intent to contract with that vendor at least 14 days prior to execution of the contract.

If no challenge to this determination is made by a vendor within the 14 day period, the Procurement Officer may execute a contract with that vendor.
If a challenge is received, the Procurement Officer shall consider the information and shall commence a competitive procurement if the Procurement Officer determines that more than one economically feasible source may be available and the sole source designation is, therefore, not appropriate, unless an emergency situation exists.

f) Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, to reach contract terms, including price, and shall maintain a record of each sole source procurement showing:

the vendor's name;
the amount and type of the contract;
what was procured; and
the identification number of the contract file.

44 Ill. Adm. Code 1500.2030 Emergency Procurements

a) Applications

The provisions of this Part apply to every procurement over the small purchase limit set in Section 1500.2020 (Small Purchases) of this Part and that is not a sole source procurement under Section 1500.2025 of this Part made under emergency, including quick purchase, conditions.

b) Definition of Emergency Conditions

Procurements may be made under this Section 1500.2030 in the following circumstances:

Traditional circumstances include but are not limited to:

A) public health or safety, including the health or safety of any particular person, is threatened;

B) immediate repairs are needed to State property to protect against further loss or damage to State property, or to prevent loss or damage to State property;

C) immediate action is needed to prevent or minimize serious disruption in State services;

D) action is needed to ensure the integrity of State records;

E) equipment or services are necessary in the furtherance of covert activities lawfully conducted by a State agency. Any required disclosures shall be made so as not to jeopardize those covert activities;

F) immediate action is necessary to avoid lapsing or loss of federal or donated funds;

G) availability of rare items such as books of historical value;

H) extending an existing contract for such period of time as is needed to conduct a competitive method of source selection where terminating or allowing the contract to terminate would not be advantageous to the State; or

I) the need for items to protect or further State interests is immediate and use of other competitive source selection procedures under the Code and this Part cannot be accomplished without significant risk of causing disadvantage to the State.

After Unsuccessful Competitive Sealed Bidding or Proposals or Request for Proposals. When bids or proposals received pursuant to a competitive sealed bid or competitive sealed proposal method are unreasonable or noncompetitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals, and if emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding, an emergency procurement may be made.
Extension to Allow Completion. Extending an existing contract for such period of time as is needed to conduct a competitive method of source selection where terminating or allowing the contract to terminate would not be advantageous to the State.
Quick Purchase.

A) A supplier announces bankruptcy, cessation of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is more advantageous to the State than instituting a competitive procurement under the provisions of this Part for the supplies or services;

B) Items are available on the spot market or at discounted prices for a limited time so that good business judgement mandates a purchase immediately to take advantage of the availability and price;

C) availability of rare items such as books of historical value.

c) Scope of Emergency Conditions

Emergency procurements shall be limited to the items, quantity and term necessary to meet the emergency need.

d) Source Selection Methods

e) Determination and Record of Emergency Procurement

Determination. The Procurement Officer shall make a written determination stating the basis for an emergency procurement and for the selection of the particular vendor. Such determinations shall be kept in the contract file of the Procurement Officer.
Record. An affidavit of each emergency procurement shall be filed with the Auditor General within 10 days after the procurement and shall include the following information:

A) the vendor's name;

B) the amount and type of the contract, provided that if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known;

C) a description of what the vendor will do or provide;

D) the reasons for using the emergency method of source selection.

Notice of the emergency procurement shall be published in the Bulletin in accordance with Subpart D of this Part.

44 Ill. Adm. Code 1500.2035 Competitive Selection Procedures for Professional and Artistic Services

a) Application

The provisions of this Section apply to every procurement of professional and artistic services except those subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and except as provided in subsection (e) below.
"Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 500/1-15.60].

b) Professional and artistic services are further defined as follows:

"Qualified by education" means the individual who would perform the services must have obtained the level of education specified in the Request for Proposals.
"Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the Request for Proposals.
"Qualified by technical ability" means the individual who would perform the services must demonstrate a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the Request for Proposals.
An essential element distinguishing professional and artistic services from other services is confidence, trust, and belief in not only the ability, but the talent, of the individual performing the service. These services are primarily for intellectual or creative skills. Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts. (See Illinois Attorney General Opinion S-256, January 20, 1971.)
If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.

c) The categories of services enumerated below shall be considered and procured as professional and artistic services. With regard to other services, the CPO may determine whether the factors identified in subsection (b), when applied to particular services to be procured, require such services to be procured as professional and artistic under these competitive selection procedures, or as services that are subject to one of the other methods of source selection authorized by the Code and this Part. The following categories are examples of disciplines that would always be professional and artistic services:

law;
accounting;
medicine;
dentistry; and
clinical psychology.

d) Architect, engineering and land surveying services shall be procured pursuant to the procedures of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535]. Such procurements are not subject to the procedures for other professional services established in the Code or this Part.

e) Conditions for Use of Competitive Selection Procedures

Except as authorized under Section 20-25 (Sole Source Procurement) or Section 20-30 (Emergency Procurements) of the Code, these competitive selection procedures shall be used for all procurements of professional and artistic services of $20,000 or more. Services of less than $20,000 and for a nonrenewable term of one year or less may be procured in accordance with Section 1500.2020 (Small Purchases) of this Part.

f) Prequalification

The CPO may use the list of prequalified professional and artistic vendors maintained by CMS. Persons may amend statements of qualifications at any time by filing a new statement. Failure of a professional and artistic vendor to prequalify shall not be cause for rejection of a proposal provided that the responsive offeror supplies with its proposal all information defined by the prequalification process.

g) Public Notice of Competitive Selection Procedures

Notice of the need for professional and artistic services shall be made by the Procurement Officer in the form of a Request for Proposals.
Notice shall be given as provided in Section 1500.2010 (Competitive Sealed Bidding) of this Part.
Notice shall also be distributed to prequalified persons interested in performing the services required by the proposed contract.

h) Request for Proposals

Contents. The Request for Proposals shall be in the form specified by the CPO and shall contain at least the following information:

A) the type of services required;

B) a description of the work involved;

C) an estimate of when and for how long the services will be required;

D) the type of contract to be used;

E) a date by which proposals for the performance of the services shall be submitted;

F) a statement of the minimum information that the proposal shall contain, which may, by way of example, include:

i) the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

ii) if deemed relevant by the Procurement Officer, the age of the offeror's business and average number of employees over a previous period of time, as specified in the Request for Proposals;

iii) the abilities, qualifications, and experience of all persons who would be assigned to provide the required services;

v) a plan explaining how the services will be performed;

G) price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package); and

H) the factors to be used in the evaluation and selection process and their relative importance.

Evaluation. Proposals shall be evaluated only on the basis of evaluation factors stated in the Request for Proposals. Price will not be evaluated until ranking of all proposals and identification of the most qualified vendor. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum factors are:

A) the plan for performing the required services;

C) the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

D) a record of past performance of similar work.

i) Pre-Proposal Conference

A pre-proposal conference, if appropriate, shall be conducted in accordance with Section 1500.2010(f) (Pre-Bid Conference). Such a conference may be held anytime prior to the date established for submission of proposals.

j) Delivery, Receipt and Handling of Proposals

Proposals shall be submitted to and opened by the CPO.
Public Opening

A) Proposals and modifications shall be opened publicly at the time, date and place designated in the Request for Proposals.

B) Opening shall be witnessed by a State employee or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that shall include the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service item offered. The record of proposals shall be open to public inspection after award of the contract.

C) Proposals and modifications shall be opened in a manner designed to avoid disclosing contents to competitors. Only State personnel and contractual agents may review the proposals prior to award.

D) Proposals of offerors who are not awarded the contract shall not be open to public inspection.

k) Discussions

Discussions Permissible. The Procurement Officer may conduct discussions with any offeror to:

A) determine in greater detail such offeror's qualifications; and

B) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach. The Procurement Officer may allow changes to the proposal based on those discussions.

No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors, and the agency conducting the procurement shall not disclose any information contained in any proposals until after award of the proposed contract has been made. The proposal of the offeror awarded the contract shall be open to public inspection except as otherwise provided in the contract.

l) Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation, and discussion, the Procurement Officer shall rank the acceptable offerors in the order of their respective qualifications.

m) Evaluation of Pricing Data

Pricing submitted for all proposals timely submitted shall be opened and ranked.

If the low price is submitted by the most qualified vendor, the Procurement Officer may award to that vendor.
If the price of the most qualified vendor is not low and if it does not exceed $25,000, the Procurement Officer may award to that vendor.
If the price of the best qualified vendor exceeds $25,000, the Procurement Officer must state why a vendor other than the low priced vendor was selected and that determination shall be published in the Bulletin.

n) Negotiation and Award of Contract

General. The Procurement Officer shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The Procurement Officer may, in the interest of efficiency, negotiate with other vendors, while negotiating with the best qualified vendor.
Elements of Negotiation. At a minimum, contract negotiations shall be directed toward:

A) making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

B) determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services and the scope, complexity, and nature of such services.

Successful Negotiation of Contract with Best Qualified Offeror

B) Compensation must be determined in writing to be fair and reasonable. Fair and reasonable compensation shall be determined by the Procurement Officer based on the circumstances of the particular procurement, including but not limited to the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, and the agency's identified budget.

Failure to Negotiate Contract with Best Qualified Offeror

A) If compensation, contract requirements, or contract documents cannot be agreed upon with the best qualified offeror, a written record stating the reasons therefore shall be placed in the file. The Procurement Officer shall advise such offeror of the termination of negotiations.

B) Upon failure to negotiate a contract with the best qualified offeror, the Procurement Officer may enter into negotiations with the next most qualified offeror.

C) Nothing in this Section shall prohibit the Procurement Officer from making a selection that represents the best value, qualifications, price and other relevant factors established in the request for proposals being considered. The Procurement Officer may, in considering best value, determine the proposal from a fully qualified vendor that submitted the lowest price to be the best value without further evaluation.

o) Multiple Awards

The Procurement Officer may enter into negotiations with the next most qualified vendor or vendors when the purchasing agency has a need that requires multiple vendors under contract.

p) The Procurement Officer procuring professional and artistic services, including those under an exception described in subsection (e), shall provide to CMS the information necessary for publication in the Bulletin.

q) Notice of Award

Written notice of award shall be public information and made a part of the contract file. Publication shall be in the next available issue of the Bulletin.

r) Small, sole source and emergency procurements of professional and artistic services under the jurisdiction of an SPO do not require approval of the CPO to proceed. Any notices shall be published by the SPO.

s) Post Performance Review

The Purchasing Officer shall provide a synopsis of the contract and shall rate the vendor's performance. A copy of the completed form shall be maintained in the files of the CPO.

44 Ill. Adm. Code 1500.2036 Other Methods of Source Selection

a) Split Award

An award of a definite quantity requirement may be split between bidders or offerors. Each portion shall be for a definite quantity and the sum of the portions shall be the total definite quantity required. A split award may be used only when award to more than one bidder or offeror for different amounts of the same item are necessary to obtain the total quantity or the required delivery.
The Procurement Officer shall make a written determination setting forth the reasons for the split award, which determination shall be made a part of the procurement file.

b) Multiple Award

A multiple award is an award of an indefinite quantity contract to more than one bidder or offeror when the State is obligated to order all of its actual requirements from those vendors.
A multiple award may be made when award to two or more bidders or offerors for similar products is necessary for adequate delivery, service, or product compatibility. Any multiple award shall be made in accordance with the provisions of Section 1500.2010 (Competitive Sealed Bidding), Section 1500.2015 (Competitive Sealed Proposals), Section 1500.2020 (Small Purchases), and Section 1500.2030 (Emergency Procurements), as applicable. Awards shall not be made for the purpose of simply dividing the business or to select products or suppliers to allow for user preference unrelated to utility or economy. Any such awards shall be limited to the least number of suppliers necessary to meet the valid requirements of State agencies.
The OG shall reserve the right to take bids separately if a particular quantity requirement arises that exceeds its normal requirement or an amount specified in the contract.
If a multiple award is anticipated, the solicitation shall state this fact as well as the criteria for award.
In a multiple award situation, one vendor may be designated as the primary recipient of orders. The other awardees may receive orders in the event the primary vendor is unable to deliver or for other reasons as determined by the Procurement Officer.

c) Term and Condition Contracts

A term and condition contract contains agreed contractual terms and conditions established for the convenience of the parties to be used in conjunction with a subsequent procurement and processed in accordance with the requirements of the Code and this Part. A term and condition contract is not a procurement. It creates no obligation on the part of the OG to procure from the vendor.
Orders may be placed against term and condition contracts without use of any prescribed method of source selection for convenience of processing sole source, emergency or small procurements.

d) Auction

e) Federal Requirements

The Procurement Officer receiving federal aid funds, grants or loans or otherwise subject to federal entity requirements may conduct procurements in accordance with federal requirements that are necessary to receive or maintain those federal aid funds, grants or loans or to remain in compliance with federal requirements.

f) Donations

When a procurement will have the majority of funding from a donation, the terms of which donation require use of particular procurement or contracting procedures, the Procurement Officer may follow those procedures, but shall follow the Code and this Part whenever practicable.
Donations may be acknowledged by the donee agency in a manner appropriate to the type of donation and the program activity associated with the donation. Acknowledgment may include, but need not be limited to, public announcement at the event or in donee agency publications, and inviting the donor to attend the program activity associated with the donation.

44 Ill. Adm. Code 1500.2037 Tie Bids and Proposals

a) Tie bids or proposals are those from responsive and responsible vendors that are identical in price or evaluation and represent the low price.

b) Tie bids or proposals will be treated as follows:

If the tied vendors include an Illinois resident vendor, the Illinois resident vendor shall be given the award. In all other situations, including if two or more Illinois resident bidders are tied, the decision shall be made in accordance with this subsection (b). "Illinois resident vendor" has the meaning given in Section 1500.4510 (Resident Bidder Preference) of this Part.
If there is a significant difference in responsibility (including ability to provide the service or deliver in the quantity and at the time required), the award will be made to the vendor who is deemed to be the most responsible. A vendor who has had experience in contracting with the State shall be given additional consideration in determining responsibility if the Procurement Officer determines that dealing with a vendor that has knowledge of State requirements, contracts, job sites, payment practices and such other factors and with which there has been favorable past experience increases the likelihood of successful performance.
If there is no significant difference in responsibility, but there is a difference in the quality of the supplies or services offered, the vendor offering the best quality will be accepted.
If there is no significant difference in responsibility and no difference in quality of the supplies or services offered, the vendor offering the earliest delivery time will be accepted in any case in which the solicitation specified that the needs of the agency require delivery as early as possible.
If the bids or proposals are equal in every respect, the award shall be made by lot unless the Procurement Officer determines that splitting the award among two or more of the tied bidders is in the best interest of the State. Awards may be split if all affected bidders agree, if splitting is feasible given the type of supplies or services requested, if overall pricing would not increase, if delivery would be better ensured, or if necessary or desirable to promote future competition.

c) Record

Each SPO shall provide a report to the CPO on a quarterly basis of all procurements on which tie bids or proposals were received. The report shall provide at least the following information:

the identification number of the solicitation;
a description of what was procured; and
a listing of all the bidders and the prices submitted.

44 Ill. Adm. Code 1500.2038 Mistakes

a) General

Corrections to bids, proposals or other procurement processes are allowed, but only to the extent not contrary to the best interest of the State or the fair treatment of other bidders.

b) Mistakes Discovered Before Opening

A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting as provided in this Section.

c) Confirmation of Mistake

d) Mistakes in Bids Discovered After Opening but Before Award

This subsection (d) sets forth procedures to be applied in situations in which mistakes in bids are discovered after the time and date set for bid opening but before award.

Minor informalities. A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation of a bid from the exact requirement of the Invitation for Bids, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery, or contractual conditions is negligible). The Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the State. Examples of minor informalities as to form include the failure of a bidder to:

A) return the number of signed bids required by the Invitation for Bids;

B) acknowledge receipt of an amendment to the Invitation for Bids, but only if:

i) it is clear from the bid that the bidder received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on price, quantity, quality, or delivery.

Mistakes Where Intended Correct Bid Is Evident. If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.
Mistakes Where Intended Correct Bid Is Not Evident. A bidder may be permitted to withdraw a low bid if:

A) a mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or

B) the bidder submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

e) Mistakes in Proposals Discovered After Receipt, but Before Award

This subsection (e) sets forth procedures to be applied in four situations in which mistakes in proposals are discovered after receipt of proposals but before award.

During Discussions; Prior to Best and Final Offers. Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may freely correct any mistake prior to the date set for conclusion of discussions or for receipt of best and final offers.
Minor Informalities. Minor informalities, unless otherwise corrected by an offeror as provided in this Section, shall be treated as they are under subsection (d).
Correction of Mistakes. If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only if:

A) the mistake and the intended correct offer are clearly evident on the face of the proposal, in which event the proposal may not be withdrawn; or

Withdrawal of Proposals. If discussions are not held, or if the best and final offers upon which award will be made have been received, the offeror may be permitted to withdraw the proposal if:

A) the mistake is clearly evident on the face of the proposal and the intended correct offer is not;

B) the offeror submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made but does not demonstrate the intended correct offer; or

f) Mistakes Discovered After Award

g) Determinations Required

44 Ill. Adm. Code 1500.2040 Cancellation of Solicitations; Rejection of Bids or Proposals

a) Scope of this Section

The provisions of this Section shall govern the cancellation of any solicitations whether issued by the State under competitive sealed bidding, competitive sealed proposals, small purchases, or any other source selection method, and rejection of bids or proposals in whole or in part.

b) Policy

Any solicitation may be canceled when the Procurement Officer believes cancellation to be in the State's best interest. Nothing shall compel the award of a contract.

c) Cancellation of Solicitation; Rejection of All Bids or Proposals Prior to Opening

As used in this Section, "opening" means the date set for opening of bids, receipt of unpriced technical offers in multi-step sealed bidding, or receipt of proposals in competitive sealed proposals.
Prior to opening, a solicitation may be canceled in whole or in part when the Procurement Officer determines in writing that such action is in the State's best interest for reasons including, but not limited to:

A) the OG no longer requires the supplies or services;

B) the OG no longer can reasonably expect to fund the procurement; or

C) proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable.

When a solicitation is canceled prior to opening, notice of cancellation shall be sent to all businesses that responded to the solicitation.
The notice of cancellation shall:

A) identify the solicitation;

B) briefly explain the reason for cancellation; and

C) where appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurements of similar supplies or services.

d) Cancellation of Solicitation; Rejection of All Bids or Proposals After Opening

After opening but prior to award, all bids or proposals may be rejected in whole or in part when the Procurement Officer determines in writing that such action is in the State's best interest. Such reasons may include, but are not limited to:

A) the supplies or services being procured are no longer required;

B) ambiguous or otherwise inadequate specifications were part of the solicitation;

C) the solicitation did not provide for consideration of all factors of significance to the State;

D) prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

E) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

F) there is reason to question whether the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

When the solicitation is canceled or when all bids or proposals are rejected, all vendors who submitted bids or proposals shall be sent a notice upon request informing them of the reasons for the cancellation or rejection.

e) Documentation

The reasons for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

f) Rejection of Individual Bids or Proposals

General. This subsection (f) applies to rejections of individual bids or proposals in whole or in part.
Notice in Solicitation. Each solicitation shall provide that any bid or proposal may be rejected in whole or in part when in the best interest of the State as provided in this Section.
Reasons for Rejection. Reasons for rejecting a bid or proposal may include, but are not limited to:

A) the business that submitted the bid or proposal is nonresponsible as determined under Section 1500.2045 (Responsibility) of this Part;

B) the bid or proposal is not responsive, that is, it does not conform in all material respects to the solicitation;

C) the proposal ultimately (that is, after any opportunity has passed for altering or clarifying the proposal) fails to meet the announced requirements of the State in some material respect;

E) the proposed price is clearly unreasonable.

Notice of Rejection. Upon request, unsuccessful bidders or offerors shall be advised of the reasons for rejection.

44 Ill. Adm. Code 1500.2043 Suppliers

a) The OG may contract with any qualified source of supply, but should give preference to Directed Sources, and should consider the following Special Sources.

b) Directed Sources − State-Produced Supplies or Services

Correctional Industries. The CPO, after consulting with the Department of Corrections, shall determine the type and extent of the preference OG shall give to supplies produced or services performed by Correctional Industries. Factors to be considered in determining the preference include, but are not limited to, the ability of Correctional Industries to meet the OG's requirements, the price charged and the reason for the Correctional Industries program.
Central Services. Supplies and services available from the program operations of CMS shall be utilized unless the CPO authorizes procurement from other sources.

c) Special Sources

Prior to any equipment procurement, the OG will consider property available from the State and Federal Surplus Warehouses, which are under the jurisdiction of CMS.
Various supplies and services are available from qualified workshops for the disabled and procurement from these workshops is encouraged. Notice and competition is not required pursuant to Section 45-35 of the Code.
Various supplies and services are available from State agencies and other governmental units. These may be procured without notice and competition.

44 Ill. Adm. Code 1500.2045 Responsibility

a) Application

Contracts are to be made only with responsible vendors unless no responsible vendor is available to meet the State's needs. If there is doubt about responsibility, and if a bond or other security would adequately protect the State's interests, then that vendor may be awarded a contract upon receipt of the bond or other security.

b) Standards of Responsibility

Standards. Factors to be considered in determining whether the standard of responsibility has been met may include, but not limited to, whether a prospective vendor:

A) has available the appropriate financial, material, equipment, facility, and personnel resources and expertise (or the ability to obtain them) necessary to indicate its capability to meet all contractual requirements (the Procurement Officer may designate a level of financial resource below which the vendor will be deemed "not responsible");

B) is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments;

E) is qualified legally to contract with the State;

F) has supplied all necessary information in connection with the inquiry concerning responsibility;

H) pays prevailing wages, if required by law; and

I) is current in payment of all State of Illinois taxes, including the unemployment insurance tax.

Information Pertaining to Responsibility. The prospective vendor shall supply information requested by the Procurement Officer concerning the responsibility of such vendor. The State may supplement this information from other sources and may require additional documentation at any time. If such vendor fails to supply the requested information, the Procurement Officer shall base the determination of responsibility upon any available information, or may find the prospective vendor nonresponsible.

c) Ability to Meet Standards

The prospective vendor may demonstrate the availability of necessary financing, equipment, facilities, expertise, and personnel by submitting upon request:

evidence that such vendor possesses such necessary items;
acceptable plans to subcontract for such necessary items; or
a documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items.

d) Duty Concerning Responsibility

Before awarding a contract, the Procurement Officer must be satisfied that the prospective vendor is responsible. Responsibility can be proven until time of contract execution unless the solicitation or other law requires that the vendor submit information necessary to determine responsibility by a stated date or time.

e) Written Determination of Nonresponsibility Required

If a vendor who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the CPO or the SPO. The final determination shall be made part of the procurement file.

f) Bond for Responsibility

Vendors not having a history of performance may be considered responsible if no other disqualifying factors exist. A bond or other security may be required of such vendors.

g) Affiliated Companies

44 Ill. Adm. Code 1500.2047 Security Requirements

a) A Procurement Officer may require that a vendor furnish bid, proposal, or performance security on OG contracts. Whenever security is required, except as provided herein, the procurement document will clearly indicate the type and amount of security.

c) Unless the amount is set by law, the Procurement Officer will determine the amount, in dollars or percentage of contract price, that will adequately protect the State's interests. That amount will vary depending on the type of procurement and the risks and potential losses associated with delay or failure to complete the project, and for other such reasons.

e) Bid or proposal security will be returned to unsuccessful vendors as soon after award as possible. The bid or proposal security of the successful vendor will be returned after contracts have been signed and performance security, if any, submitted. Performance security will be returned upon full performance.

44 Ill. Adm. Code 1500.2050 Specifications

a) The OG may use specifications or qualified products lists established or used by CMS.

b) Brand Name or Equal Specification

Brand name or equal specifications may be used when the Procurement Officer determines in writing that:

A) no specification for a common or general use specification or qualified products list is available;

B) time does not permit the preparation of another form of specification, not including a brand name specification;

C) the nature of the product or the nature of the State's requirement makes use of a brand name or equal specification suitable for the procurement; or

D) use of a brand name or equal specification is in the State's best interest.

Brand name or equal specifications shall seek to designate more than one brand as "or equal", and shall further state that substantially equivalent products to those designated will be considered for award.
Unless the Procurement Officer determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics that are required.
Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use. Burden of proof that the product is equal is on the bidder.

c) Brand Name Only Specification

Determination. A brand name only specification may be used only when the Procurement Officer makes a written determination that only the identified brand name item or items will satisfy the State's needs.
Use. Brand name alone may be specified in order to fill medical prescription needs, to stock State retail-type operations, to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the CPO. An agency may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time, and for that period the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected.
Competition. The Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made under Section 1500.2025 (Sole Economically Feasible Source Procurement) of this Part.
Small and Emergency Procurements. Brand name only specifications may be used when procuring items under the small (see Section 1500.2020 of this Part) and emergency (see Section 1500.2030 of this Part) provisions of this Part.

d) Proven Products

The supply or service may be rejected if it has not been offered to other governmental or commercial accounts for at least one year. Specifications may require that the supply or services have been used in business or industry for a specified period of time to be considered.

44 Ill. Adm. Code 1500.2055 Types of Contracts

a) Scope

This Section contains descriptions of types of contracts and limitations as to when they should be utilized by the State in its procurements. Types of contracts not mentioned in this Section may also be utilized.

b) Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

The cost-plus-a-percentage-of-cost contract is prohibited by Section 20-55 of the Illinois Procurement Code. This type of contracting may not be used alone or in conjunction with an authorized type of contract. A cost-plus-percentage-of-cost contract is one in which the vendor selects the supply or service on which the vendor's percentage is applied.

A percentage mark-up from an agreed price list is not a cost-plus-a-percentage-of-cost contract.
A percentage mark-up from the price of a supply or service selected by the State or another vendor under contract to the State is not a cost-plus-a-percentage-of-cost contract.

c) Types of Fixed-Price Contracts

Firm Fixed-Price Contract. A firm fixed-priced contract provides a price that is not subject to adjustment because of variations in the vendor's cost of performing the work specified in the contract.
Fixed-Price Contract with Price Adjustment

i) changes in the vendor's labor agreement rates as applied to an industry or area (such as are frequently found in contracts for the purchase of coal);

ii) changes due to rapid and substantial price fluctuations that can be related to an accepted index (such as contracts for gasoline, heating oils, and dental gold alloy); and

iii) in requirement contracts, where a vendor is selected to provide all of the State's needs for the items specified in the contract, when a general price change applicable to all customers occurs, or when a general price change alters the base price (such as a change in a manufacturer's published price list or posted price to which a fixed discount is applied pursuant to the contract to determine the contract price).

d) Cost-Reimbursement Contracts

Determination Prior to Use

A) A cost-reimbursement type contract may be used only when the Procurement Officer determines in writing that such a contract is likely to be less costly to the State than any other type or that it is impracticable to obtain the items.

B) Reimbursement of travel expenses in accordance with applicable travel control board regulations is authorized without further determinations.

Cost Contract. A cost contract provides that the vendor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee.
Cost-Plus-Fixed-Fee Contract. This is a cost-reimbursement type contract that provides for payment to the vendor of an agreed fixed fee in addition to reimbursement of allowable incurred costs. The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for such work. Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed. The fee is subject to adjustment only if the contract is modified to provide for an increase or decrease in the scope of work specified in the contract.
Cost Incentive Contracts

B) Fixed-Price Cost-Incentive Contract. In a fixed-price cost-incentive contract, the parties establish at the outset a target cost, a target profit (that is, the profit that will be paid if the actual cost of performance equals the target cost), a formula that provides a percentage increase or decrease of the target profit depending on whether the actual cost of performance is less than or exceeds the target cost, and a ceiling price. After performance of the contract, the actual cost of performance is arrived at based on the total incurred allowable costs as provided in the contract. The final contract price is then established in accordance with the formula using the actual cost of performance. The final contract price may not exceed the ceiling price. The vendor is obligated to complete performance of the contract, and, if actual costs exceed the ceiling price, the vendor suffers a loss.

C) Cost-Reimbursement Contract with Cost-Incentive Fee. In a cost-reimbursement contract with cost-incentive fee, the parties establish at the outset a target cost; a target fee; a formula for increase or decrease of fee depending on whether actual cost of performance is less than or exceeds the target cost, with maximum and minimum fee limitations; and a cost ceiling that represents the maximum amount that the State is obligated to reimburse the vendor. The vendor continues performance until the work is complete or costs reach the ceiling specified in the contract, including any modification thereof, whichever first occurs. After performance is complete or costs reach the ceiling, the total incurred, allowable costs reimbursed as provided in the contract are applied to the formula to establish the incentive fee payable to the vendor.

e) Performance Incentive Contracts

f) Time and Materials Contracts; Labor Hour Contracts

Time and materials contracts provide an agreed basis for payment for materials supplied and labor performed. Labor hour contracts provide only for the payment of labor performed. Such contracts shall, to the extent possible, contain a stated ceiling or an estimate that shall not be exceeded without prior State approval.

g) Definite Quantity and Indefinite Quantity Contracts

Definite Quantity. A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services either at specified times or when ordered.
Indefinite Quantity. An indefinite quantity contract is a contract for an indefinite amount of supplies or services to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type. Generally an approximate quantity or the best information available as to quantity is stated in the solicitation. The contract may provide a minimum quantity the State is obligated to order and may also provide for a maximum quantity provision that limits the State's obligation to order.
Requirements Contracts. A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the State to order all the actual requirements of designated State agencies during a specified period of time.

h) Leases

A lease is a contract for the use of supplies or real property under which title will not pass to the State at any time, except pursuant to an option to purchase.

i) Recovery Contracts

j) Option Provisions

Contract Provision. When a contract is to contain an option for renewal, extension, or purchase, notice of such provision shall be included in the solicitation. These options may be exercised without taking other procurement action when the option is established for exercise at the OG's option, and there is no material change in the terms and conditions or any such change is dependent on a fixed formula or standard established in the original contract.
Lease with Purchase Option. A purchase option in a lease may be exercised only if the lease containing the purchase option was awarded under competitive sealed bidding or competitive sealed proposals, the leased supply or facility is the only supply or facility that can meet the State's requirements, the purchase option price is less than the small purchase limit or emergency conditions exist.

k) State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available from the State's own programs, such as Correctional Industries, may be ordered without violating any contract.

l) Extraordinary Quantities

m) Energy Conservation

The CPO may authorize an IFB, RFP or sole source negotiation for energy conservation measures whereby the OG would make payment based on utility cost savings. Such contract shall require a clearly defined baseline of energy usage and method of measuring cost savings taking into account at least differing weather conditions, changes in facility, usage and cost of energy.

44 Ill. Adm. Code 1500.2060 Duration of Contracts - General

a) General

A multi-term contract for a term of up to 10 years is authorized when determined by the Procurement Officer to be in the best interest of the State.
The length of the payment term of bonds issued by or on behalf of a State agency shall be limited as provided in the statute authorizing the issuance of the bonds.
A software license may have a term longer than 10 years, including for a perpetual term, provided the payment term is limited to no more than 10 years.

b) The contractual obligation of both parties in each fiscal period succeeding the first is subject to appropriation and availability of funds. The contract shall provide that, in the event that funds are not available for any succeeding fiscal period, the remainder of such contract shall be canceled without penalty to, or further payment being required by, the State. This provision applies to only those contracts that are funded in whole or in part by funds appropriated by the Illinois General Assembly or other governmental entity.

c) Conditions for Use of Multi-Term Contracts

A multi-term contract may be used when:

special production of definite quantities or the furnishing of long-term services is required to meet State needs; or
a multi-term contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement.

d) Multi-Term Contract Procedure

The solicitation shall state:

the proposed term;
the amount of supplies or services required for the proposed contract period;
the type of pricing requested (e.g., firm for term);
how award will be determined.

e) Renewals

When the original procurement specifically called for an initial term plus renewals, the renewals may be exercised without further procurement activity, provided the initial term and the exercised renewals may not exceed 10 years, the terms and conditions do not change except as provided in the contract (such as price escalations tied to an index) and the option is reserved solely to the State or is by mutual agreement. A renewal option that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to competitive procurement procedures established by the Code and this Part.
When the original procurement was silent as to renewals, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part. This renewal shall start a new term not to exceed 10 years.
When a renewal will result in the total term, counting the initial term and any previous renewals, to exceed 10 years, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part. This renewal will start a new term that shall not exceed 10 years.

44 Ill. Adm. Code 1500.2560 Prevailing Wage

a) For the following classifications and if competition exists, no bidder will be awarded a contract unless its employees are paid wages and benefits and are working under conditions prevalent in the location where the work is to be performed.

Public works
Printing
Janitorial services, window washing and security guard services having a monthly contract price of at least $200 or a yearly price of at least $2,000.

c) Prevailing Wage Rates

Prevailing wage rates, benefits and conditions will be those in effect on the first date of the contract, provided that, if the rate changes during the contract term and the amount of change is known before execution of the contract, then the contract rate will vary in like amount.
If the change in the collective bargaining agreement cannot be determined in advance, the contract will be changed by the amount of the change in wage rate and all components of price that are dependent on the usage rate, such as payroll taxes, worker's compensation insurance, vacation, sick days, and pension, provided that profit shall not increase due to prevailing wage increases. The OG shall have the option to cancel the contract if the new price is unacceptable.
If the initial prevailing wage, etc., cannot be determined prior to execution, contracts may be entered into and will remain valid for the stated term.

d) If a collective bargaining agreement is in effect governing the type of printing, janitorial, window washing or security guard service sought, that agreement will define minimum wages, benefits and conditions that must be paid in order for a bidder to be considered responsible.

e) For public works, location means the county where the physical work upon public works is performed, except that if there is not available in the county a sufficient number of competent skilled laborers, workers and mechanics to construct the public works efficiently and properly, "locality" includes any other county nearest the one in which the work or construction is to be performed and from which such persons may be obtained in sufficient numbers to perform the work.

f) For printing contracts, location means one of the following areas:

Location

A) Cook County;

B) Boone, Bureau, Carroll, Champaign, DeKalb, DeWitt, DuPage, Ford, Fulton, Grundy, Hancock, Henderson, Henry, Iroquois, Jo Daviess, Kane, Kankakee, Kendall, Knox, Lake, LaSalle, Lee, Livingston, Logan, Marshall, Mason, McDonough, McHenry, McLean, Mercer, Ogle, Peoria, Piatt, Putnam, Rock Island, Schuyler, Stark, Stephenson, Tazewell, Vermilion, Warren, Whiteside, Will, Winnebago, and Woodford counties;

C) Adams, Alexander, Bond, Brown, Calhoun, Cass, Christian, Clark, Clay, Clinton, Coles, Crawford, Cumberland, Douglas, Edgar, Edwards, Effingham, Fayette, Franklin, Gallatin, Greene, Hamilton, Hardin, Jackson, Jasper, Jefferson, Jersey, Johnson, Lawrence, Macon, Macoupin, Madison, Marion, Massac, Menard, Monroe, Montgomery, Morgan, Moultrie, Perry, Pike, Pope, Pulaski, Randolph, Richland, Saline, Sangamon, Scott, Shelby, St. Clair, Union, Wabash, Washington, Wayne, White, and Williamson counties.

Where the printing is performed in a plant outside the jurisdiction of this State, it shall be deemed produced in the Illinois locality in which delivery of the printing ordered is required to be made. Where such printing is required to be delivered to more than one Illinois locality, such printing shall be deemed produced in the Illinois locality to which the largest dollar volume of printing under the contract is to be delivered.

g) For janitorial services, window washing and security guard services, location means the county in which the work is to be performed.

h) Prevailing wages, benefits and conditions will be determined by the Illinois Department of Labor.

44 Ill. Adm. Code 1500.2570 Equal Employment Opportunity; Affirmative Action

a) Public Contracts. Every party to a public contract and every eligible bidder shall:

Refrain from unlawful discrimination and discrimination based on citizenship status in employment and undertake affirmative action to assure equality of employment opportunity and eliminate the effects of past discrimination;
Comply with the procedures and requirements of the Department of Human Rights (DHR) regulations concerning equal employment opportunities and affirmative action;
Provide such information, with respect to its employees and applicants for employment, and assistance as DHR may reasonably request;
Have written sexual harassment policies that shall include, at a minimum, the following information:

A) the illegality of sexual harassment;

B) the definition of sexual harassment under State law;

C) a description of sexual harassment, utilizing examples;

D) the vendor's internal complaint process, including penalties;

E) the legal recourse, investigative and complaint process available through DHR and the Human Rights Commission;

F) directions on how to contact DHR and the Commission; and

G) protection against retaliation as provided by Section 6-101 of the Illinois Human Rights Act (IHRA) [775 ILCS 5].

A copy of the policies shall be provided to the Department of Human Rights upon request.

b) Section 7-105A of the IHRA authorizes the Department of Human Rights to promulgate policies, rules and regulations to implement the provisions of the IHRA applicable to eligible bidders and public contractors. DHR has promulgated rules, 44 Ill. Adm. Code 750, that establish public contractor and eligible bidder duties, obligations, and reporting requirements. Those rules require that certain employers register with DHR in order to be eligible for the award of certain public contracts (44 Ill. Adm. Code 750.Appendix A).

44 Ill. Adm. Code 1500.2800 All Costs Included

The IFB or RFP and any resulting contract should define whether prices cover transportation, transit insurance, delivery, installation, taxes, and any other costs.

44 Ill. Adm. Code 1500.4505 Procurement Preferences

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts. When any such preference is utilized, the Invitation for Bids, Request for Proposals, or other procurement request shall identify the preference and the conditions associated withv such use. Subsequent Sections of this Subpart M identify conditions for the use of certain of the statutory preferences.

44 Ill. Adm. Code 1500.4510 Resident Bidder Preference

b) In breaking a tie, an Illinois resident vendor shall be given the award.

c) In all procurements involving out-of-state vendors, the CPO shall consult a list of states with in-state preference that shall be maintained by CMS.

44 Ill. Adm. Code 1500.4530 Correctional Industries

a) The CPO shall consult a listing, maintained by CMS, of supplies or services available from the Department of Corrections.

b) Procurement Officers are authorized to procure from Corrections without seeking competition or giving public notice.

44 Ill. Adm. Code 1500.4535 Sheltered Workshops for the Disabled

a) Use of Sheltered Workshop

The Procurement Officer may determine to contract with a sheltered workshop on the list maintained by CMS, and may do so without notice or competition.

b) Conditions for Use

The CPO shall, in consultation with the State Use Committee created by the Code (Section 45-35), determine which articles, materials, services, food stuffs and supplies that are produced or manufactured by persons with disabilities in State use sheltered workshops shall be given preference by purchasing agencies procuring those items. The CPO shall use procedures established by CMS for implementing this Section.

c) Sheltered Workshop List

The CPO shall use the list of all qualified sheltered workshops and the supplies and services each qualified sheltered workshop provides, which is maintained by CMS.

d) Pricing Approval

While notice and competition is not required prior to contracting with a sheltered workshop, prices must be reasonable. Whether a price is reasonable will be determined based upon current market prices, historical prices, prices received by other State agencies for similar supplies or services, the policy of the Code to promote procurements from sheltered workshops, and other such relevant factors.
The State Use Committee, established under Section 45-35 of the Code, must approve contracts for reasonableness of price if:

A) the supply or service would ordinarily be subject to competitive sealed bidding or competitive sealed proposals methods of source selection; or

B) the supply or service is bid and the sheltered workshop is selected even though not the lowest responsible bidder.

State Use Committee approval is not required if:

A) the contract does not exceed the bid limit set in Section 1500.2020 of this Part and no bidding was conducted; or

B) the contract is let to the sheltered workshop under a competitive procedure.

When Committee approval is required, it will be given or denied in an expeditious manner so as not to disrupt procurement activities. Consideration will be at regularly scheduled meetings or through special telephone meetings conducted between regular meetings.

44 Ill. Adm. Code 1500.4540 Small Business

a) Set-Aside

The CPO may determine categories of supplies or service procurements that will be set aside for small business located in Illinois. The set-aside designation may be made for current and future procurements of a specific supply, service or construction, or for a class of like supplies, services or construction. A set-aside designation may last indefinitely or for a stated period of time.

b) Small Business List

The CPO may use the list, maintained by CMS or other appropriate State agency, of responsible vendors that meet the criteria of small business. A business that fits the definition of small on the day of bid or proposal opening will be considered small for the duration of the contract.

c) Required Use

d) Withdrawal of Set-Aside

If the Procurement Officer determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the Procurement Officer shall reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question. When a small business set-aside is withdrawn, notification shall be published in the Illinois Procurement Bulletin with an explanation. After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with the limitations of the Code and this Part.

e) Criteria for Small Business

Unless the CPO provides a definition for a particular procurement that reflects industrial characteristics, a small business is one:

Independently owned and operated.
Not dominant in its field of operations. This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
With annual sales for most recently ended fiscal year no greater than:

A) $7,500,000 for wholesale business;

B) $3,000,000 for construction business; or

C) $1,500,000 for retail business.

With no more than 250 employees if a manufacturing business.

If the business is any combination of retailer, wholesaler or construction business, then the annual sales for each component may not exceed the amounts shown in subsection (e)(3). For example, a business that is both a retailer and wholesaler may not have total sales exceeding $9,000,000 and the retail component may not exceed $1,500,000 and the wholesaler component may not exceed $7,500,000. If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed the number shown in subsection (e)(4).
When computing the size status of a vendor, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates shall be included. Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or when a third party or parties controls or has the power to control both. In determining whether concerns are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management and contractual arrangements. However, a franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

f) Vendors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses shall submit information verifying that the vendor qualifies as a small business or rely on such procedures established by other State agencies. The CPO may establish procedures for verifying such information.

44 Ill. Adm. Code 1500.4570 Contracting with Businesses Owned and Controlled by Minorities, Females and Persons with Disabilities

a) Introduction

b) Upon direction of the CPO, the OG may establish set-asides and other such preferences for vendors certified under that Act.

c) Certification

Certification procedures are set forth in rules governing the Business Enterprise Act (44 Ill. Adm. Code 10).

d) The CPO may refer to the list of businesses that have been certified and maintained by CMS.

44 Ill. Adm. Code 1500.5013 Conflicts of Interest

a) This Section does not apply to those elected to local government, including school districts, nor does it apply to those elected to federal offices in this State. This Section does apply to those elected to an office of Illinois State government.

b) An individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise receives a direct financial benefit in conjunction with performance of a contract, including finders fees and commission payments.

c) Distributable income means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, which is distributed to those entitled to receive a share of such income. In the case of a for-profit corporation, distributable income means "dividend". When calculating entitlement to distributable income the entitlement shall be determined at the end of the company's most recent fiscal year.

d) This Section does not apply to contracts with licensed professionals provided such contracts are competitively bid. For purposes of this Section, "bid" means procured pursuant to the competitive procedures identified in Subpart E of this Part.

44 Ill. Adm. Code 1500.5015 Negotiations for Future Employment

a) It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association, or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 500/50-15(a)]

b) An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an independent contractor is in a "continued contractual relationship" from the effective date of the contract until such time as the contract is terminated.

c) An individual who performs services pursuant to a contract and who meets the requirements of an "independent contractor" as opposed to an "employee" is in a "continued contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the State must act to terminate, or has a definite term of at least three months.

44 Ill. Adm. Code 1500.5020 Exemptions

If the Procurement Officer finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the Procurement Officer, if other than the CPO, shall forward to the CPO the name of the vendor and a description of the proposed contract and of the potential conflict, and shall state why an exemption should be granted. The CPO shall submit the files to the Board of Ethics for its determination and with the approval of the CPO, the Board of Ethics may exempt named individuals from the prohibitions of Section 50-13 of the Code when, in its judgment, the public interest in having the individual in the service of the State outweighs the public policy evidenced in that Section [30 ILCS 500/50-20].

44 Ill. Adm. Code 1500.5030 Revolving Door

Effective January 15, 1999, the CPO shall identify in writing the designees whose jobs, or whose position descriptions, are at least 51% directly related to State Procurement. The following activities are directly related to State Procurement: drafting specifications, preparing Invitations for Bids and Requests for Proposals, evaluating responses to Invitations for Bids and Requests for Proposals, negotiating contracts and supervising any of the foregoing. The CPO shall maintain that information for a period of at least two years following the end or revocation of the designation.

44 Ill. Adm. Code 1500.5035 Disclosure of Financial Interests and Potential Conflicts of Interest

a) For purposes of Section 50-35(a) of the Code, an "offer from responsive bidders or offerors" means only those offers that are received using an Invitation for Bids or Request for Proposals under Sections 20-10, 20-15 and 20-35 or Article 35 of the Code. Disclosures are not required in small, sole source or emergency procurements.

b) For purposes of:

Section 50-35(b) of the Code, "parent entity" means a person who owns 100% of the bidding entity.
Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

c) Distributable or distributive income means the income of a company after payment of all expenses, including employee salaries and bonuses, and retained earnings, which is distributed to those entitled to receive a share of such income.

d) Personal services shall be any contract for services subject to this Code, including, for example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

e) "Competitively bid" means a contract let pursuant to Sections 20-10, 20-15 and 20-35 of the Code.

f) "Subject to federal 10K reporting" means subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934. "10K disclosure" means a report required under Section 13 or 15(d) of the Securities Exchange Act of 1934.

g) Once a disclosure is made in relation to a particular contract, the disclosure need not be repeated if the contract is amended.

h) 10K Disclosures

Any vendor subject to federal 10K reporting requirements may submit its 10K to the State in satisfaction of the disclosure requirement of Section 50-35(b) of the Code provided the vendor also identifies the specific sections or parts in the 10K disclosure where the State may find information, if any, pertaining to those who have an ownership interest or an interest in the distributable income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State. If the financial interest or conflict of interest information requested by the State is not in the 10K, but is in a document referenced in the 10K, or in a document that may be submitted to the SEC in conjunction with or in lieu of the 10K, then that additional documentation shall be provided as well.
10K disclosures are available for public review. Any potential conflict of interest identified by the public and brought to the attention of the CPO or SPO shall be investigated.
In circumstances where a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code and for purposes of the Procurement Officer's duty to consider any conflict or potential conflict of interest that may exist, but that is not subject to specific disclosure requirements of the Code and this Part, and that is not personally known by the Procurement Officer, the duty of the Procurement Officer "publicly known or reasonably available to the public" shall be satisfied by taking into consideration information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure.

44 Ill. Adm. Code 1500.5510 Complaints Against Vendors

a) The purpose of this Section is to document performance of vendors.

b) Whenever a vendor fails to meet contract requirements, including but not limited to failure to deliver on time or meet specifications, the OG shall take appropriate action to initiate a complaint to the vendor.

c) For relatively minor infractions, the OG may initiate contact by telephone or in person. If not resolved by this action, a written complaint shall be made.

d) For other infractions, the OG shall send a written complaint to the vendor detailing the problem.

e) A copy of all written complaints and the resolution or status shall be filed with CMS.

44 Ill. Adm. Code 1500.5520 Suspension

The OG may recommend to CMS that a vendor be suspended from doing business with the State, with one or more agencies, or for specific types of supplies or services. Suspensions will be governed by 1 Ill. Adm. Code 1.5510 through 1.5550.

44 Ill. Adm. Code 1500.5530 Resolution of Contract Controversies

a) Authority to Resolve Controversies

The Procurement Officer shall have authority to resolve controversies.

b) Authority of the OG

The OG has the authority to accept delivery of supplies or services in accordance with contract requirements as satisfactory adjustment of a complaint.

c) Substitution of Terms/Price Reduction

If the vendor proposes to make an adjustment by:

substituting an alternative specification, or
reducing the contract price by a certain amount to compensate for some failure to provide full performance under the contract,

such proposal must be referred to and approved by the Procurement Officer.

d) Cancellation for Breach of Contract

In any of the following cases the Procurement Officer shall have the right to terminate or rescind any contract entered into under this Part:

The successful bidder fails to furnish a satisfactory performance bond within the time specified.
The vendor fails to make delivery at the place or within the time specified in the contract or as ordered by the OG.
Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies or services promptly.
The vendor is guilty of misrepresentation (for example, misbranding of food or drugs) in connection with another contract for the sale of supplies or services to the OG such that the vendor cannot reasonably be depended upon to fulfill his obligations as a responsible vendor under any of his contracts with the OG.
The vendor should be adjudged bankrupt; enter into receivership or make a general assignment for the benefit of creditors due to insolvency; disregard laws, rules, or instructions of the Procurement Officer; or act in violation of any provision of the contract; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.
Any other breach of contract or other unlawful act by the vendor.

e) Cancellation for Fraud, Collusion, Illegality, Etc.

The OG may cancel any contract it established if there is sufficient evidence to show that:

The contract was obtained by fraud, collusion, conspiracy, or other unlawful means; or
The contract conflicts with any statutory provision of the State of Illinois or of the United States.

f) Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the OG may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the State of Illinois for any damages suffered by it because of the vendor's breach of contract or other unlawful act on the vendor's part on which the cancellation is based.

g) Damages

The damages for which the OG may be compensated as provided in this Section or by a suit on the vendor's performance bond or by other legal remedy shall include, but are not limited to, the following:

the additional cost of supplies or services bought elsewhere;
cost of repeating the procurement procedure;
any expenses incurred because of delay in receipt of supplies or services; and
any other damages caused by the vendor's breach of contract or unlawful act.

44 Ill. Adm. Code 1500.5540 Violation of Statute or Rule

a) Determination that Solicitation or Award Violates Law

If the Purchasing Officer finds that the solicitation or proposed award is in violation of statute or rule, the Purchasing Officer may cancel the solicitation or proposed award, or make modifications to correct the violation, if such correction may be legally accomplished.

b) Determination that Contract Violates the Code or this Part

Contracts based on awards or solicitations that were in violation of law shall be terminated at no cost to the OG unless statute or rule allows the OG to modify, ratify or take other corrective action.

c) Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the OG shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract.

44 Ill. Adm. Code 1500.5550 Protests

a) Protest Resolution by the Procurement Officer

An actual or prospective bidder, offeror, or vendor that may be aggrieved in connection with a procurement may file a protest on any phase of solicitation or award, including but not limited to specifications preparation, bid solicitation, or award.

b) Complaint to Procurement Officer

Complainants should seek resolution of their complaints initially with the office that issued the solicitation. Such complaints may be made verbally or in writing.

c) Filing of Protest

Protests shall be made in writing to the Procurement Officer, if applicable, and shall be filed within 7 calendar days after the protester knows or should have known of the facts giving rise to the protest. A protest is considered filed when physically received by the Procurement Officer. Protests filed after the 7 calendar day period shall not be considered. In regard to a protest regarding specifications, the protest must be received within 7 calendar days after the date the solicitation was issued, and in any event must be received by the OG at the designated address before the date for opening of bids or proposals.
To expedite handling of protests, the envelope should be labeled "Protest". The written protest shall include as a minimum the following:

A) the name and address of the protester;

B) appropriate identification of the procurement and, if a contract has been awarded, its number;

C) a statement of reasons for the protest; and

D) supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated.

d) Requested Information; Time for Filing

Any additional information requested by the OG shall be submitted within the time periods established by the requesting source in order to expedite consideration of the protest. Failure of the protesting party to comply expeditiously with a request for information by the Procurement Officer may result in resolution of the protest without consideration of that information.

e) Stay of Procurements During Protest

When a protest has been timely filed and before an award has been made, the Procurement Officer shall make no award of the contract until the protest has been resolved. If timely received but after award, the award shall be revoked without penalty and no award made until the protest has been resolved. In either case the Procurement Officer may make the award or reinstate the award upon a determination that the needs of the OG require an immediate award and performance under the contract.

f) Decision by the Procurement Officer

A decision on a protest shall be made by the Procurement Officer as expeditiously as possible after receiving all relevant requested information. If a protest is sustained, the available remedies include, but are not limited to, reversal of award and cancellation or revision of the solicitation.

g) Effect of Judicial or Administrative Proceedings

If an action concerning the protest has commenced in court, the Procurement Officer shall not act on the protest, but shall refer the protest to the Attorney General unless otherwise directed by the Attorney General.

44 Ill. Adm. Code 1500.6500 General

In an effort to make the procurement process more efficient, OG and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to utilize each others' procurement contracts. This authority is governed by this Subpart and the Governmental Joint Purchasing Act [30 ILCS 525]. Only the CPO may enter into contracts under the Act when the OG is a party to the contract.

44 Ill. Adm. Code 1500.6510 No Agency Relationship

In any joint procurement situation, the other governmental unit must issue its own purchase order, accept its own deliveries and make its own payments. The State of Illinois shall have no obligation to the vendor for payment of orders placed by other governmental units.

44 Ill. Adm. Code 1500.6520 Obligations of Participating Governmental Units

If governmental units determine to use contracts established by the OG or by CMS on behalf of the OG, they must:

a) provide to the CPO a copy of the ordinance or resolution passed by the governing body of the governmental unit giving authority to make purchases from contracts issued by the State of Illinois;

b) make all purchases under the State contracts for public use only and specifically prohibit personal use or consumption by any individual, public employee or official;

c) make payment to the vendor within 30 days after receipt of supplies or services;

d) place orders with the supplier directly using their own purchase order forms. A copy of the purchase order must also be sent to the CPO. This copy will be used for statistical purposes and will serve as notice that the governmental unit has complied with the bid action;

e) inspect all items immediately for compliance with the contract specifications and report to the CPO any failure of suppliers to comply with contract requirements; and

f) attempt to resolve disputes with the vendor before involving the CPO.

44 Ill. Adm. Code 1500.7000 Severability

44 Ill. Adm. Code 1500.7010 Government Furnished Property

If the OG provides any property to the vendor in furtherance of the contract, such property shall remain the property of the State but may be consumed by the vendor if necessary to complete the contract. Vendor will issue a receipt for the property and will be responsible for its safekeeping and for return of unused property to the State.

44 Ill. Adm. Code 1500.7015 Inspections

a) Inspection of Plant or Site

The OG may enter, or authorize CMS to enter, a vendor's or subcontractor's plant or place of business to:

inspect supplies or services for acceptance by the State pursuant to the terms of a contract;
audit the books and records of any vendor or subcontractor pursuant to Section 1500.7020 (Records and Audits) of this Part;
investigate an action to debar or suspend a person from consideration for award of contracts pursuant to the Code;
determine whether the standards of responsibility have been met or are capable of being met;
determine if the contract is being performed in accordance with its terms; and
accomplish any other purpose permitted by law.

b) Inspection and Testing of Supplies and Services

Solicitation and Contractual Provisions. Contracts of the OG may provide for the inspection of supplies and services at the vendor's or subcontractor's facility and performance tests to determine whether the supplies or services conform to solicitation requirements, or, after award, to contract requirements, and are therefore acceptable. Such inspections and tests shall be conducted in accordance with the terms of the solicitation and contract and may be conducted by CMS on behalf of the OG.
Procedures for Trial Use and Testing. The Procurement Officers may establish operational procedures, or may rely on such procedures established by CMS, governing the testing and trial use of equipment, material, and other supplies by the OG, and the application of resulting information and data to specifications or procurements.

c) Conduct of Inspections

Inspectors. Inspections or tests shall be performed so as not to unduly delay the work of the vendor or subcontractor. No inspector other than the Procurement Officer may change any provision of the specifications or the contract without written authorization of the Procurement Officer. The presence or absence of an inspector shall not relieve the vendor or subcontractor from any requirements of the contract.
Location. When an inspection is made in the plant or place of business of a vendor or subcontractor, such vendor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.
Time. Inspection or testing of supplies and services performed at the plant or place of business of any vendor or subcontractor shall be performed at reasonable times.

d) Inspection of Construction Projects

On-site inspection of construction shall be performed in accordance with the terms of the contract.

44 Ill. Adm. Code 1500.7020 Records and Audits

a) Retention of Books and Records

Books and records that relate to performance of a contract, including subcontracts, and that support amounts charged to the OG, shall be maintained:

by a vendor, for three years from the date of final payment under the prime contract;
by a subcontractor, for at least three years from the date of final payment under the subcontract; and
by a vendor and subcontractor for such longer period of time as is necessary to complete ongoing or announced audits.

b) Contract Audit

Types of Contracts Audited. The type of contract under which books and records should be audited is that in which price is based on costs or is subject to adjustment based on costs, or that in which auditing would be appropriate to assure satisfactory performance, such as a time and materials contract.
Situations in which an audit may be warranted include, but are not limited to, when a question arises in connection with:

A) the financial condition, integrity, and reliability of the vendor or subcontractor;

B) any prior audit experience;

C) the adequacy of the vendor's or subcontractor's accounting system;

D) the number or nature of invoices or reimbursement vouchers submitted by the vendor or subcontractor for payment;

E) the use of federal assistance funds;

F) the fluctuation of market prices affecting the contract; or

G) any other situation in which the Procurement Officer finds that such an audit is necessary for the protection of the State's best interest.

44 Ill. Adm. Code 1500.7025 Written Determinations

a) Preparation and Execution

When the Code or this Part requires a written determination, the officer required to prepare the determination may delegate its preparation, but the responsibility for and the execution of the determination shall not be delegated.

b) Content

Each written determination shall set out sufficient facts, circumstances, and reasoning as will substantiate the specific determination that is made.

c) Obtaining Supporting Information

While an officer is responsible for the execution of the written determination, other State personnel, particularly technical personnel and appropriate personnel in the purchasing agency, are responsible for furnishing to the cognizant official, in an accurate and adequate fashion, the information pertinent to the determination. When requested, such information shall be furnished in writing to the cognizant official who shall have the authority to decide the final form and content of the determination and to resolve any questions or conflicts arising with respect to the determination.

d) Forms

The CPO is authorized to prescribe methods and operational procedures to be used in preparing written determinations.

e) Retention

44 Ill. Adm. Code 1500.7030 No Waiver of Sovereign Immunity

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.

Chapter XXXIII Office of the Lt. Governor

Part 1600 Office of the Lt. Governor's Procurement Rules

44 Ill. Adm. Code 1600.01 Title

This Part may be cited as the Office of the Lt. Governor Procurement Rules.

44 Ill. Adm. Code 1600.05 Policy

All procurements by the Office of the Lt. Governor (OLG) shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with statute, this Part and other applicable rules.

44 Ill. Adm. Code 1600.10 Application

a) Articles 1, 15, 20, 25, 35, 40, 45, 50, and 53 of the Illinois Procurement Code [30 ILCS 500] (the Code) will be referenced herein as though applicable to the OLG, and all procurements of goods or services conducted by the OLG or by CMS on behalf of the OLG shall be substantially in accordance with those provisions of the Code, except to the extent otherwise provided in this Part.

b) For the purposes of the Code and this Part, any reference to Chief Procurement Officer (CPO) means the Lt. Governor or his designee except that for the purpose of issuing State debt, the Director of the Bureau of the Budget shall be the CPO. The Lt. Governor may appoint one or more designees.

c) The Code and this Part apply to those procurements for which the vendors were first solicited on or after July 1, 1998.

e) A solicitation occurs on or before June 30, 1998, as follows:

When advertising was required in the Official State Newspaper, the first advertisement must run no later than June 30, 1998.
When advertising was not required:

A) if the procurement was advertised, even though advertising was not required, the first advertisement must have run no later than June 30, 1998;

B) if the procurement was by direct solicitation by mail, the solicitation must have been postmarked or placed in the control of a private carrier no later than June 30, 1998;

C) if the procurement was by direct solicitation by fax, the fax must show a transmission date no later than June 30, 1998;

In all circumstances, the solicitations must be for the procurement of particular needs. A general discussion to determine if there is any interest on the part of a State agency in the supplies or services of a vendor or vendors, or on the part of a vendor or vendors in providing the supplies or services, is not considered a solicitation.

f) The Code and this Part do not apply to:

contracts between the State and its political subdivisions or other governments, or between State governmental bodies except as specifically provided in the Code. (For purposes of this subsection (f)(1), "governmental bodies" includes the State universities and their governing boards, community colleges and their governing boards and school districts. This provision applies to contracts between governmental entities; it does not allow State agencies to utilize contracts established by other governmental entities);
grants;
hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual;
collective bargaining contracts;
purchase of real estate; or
contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the chief legal counsel to the Lt. Governor shall give his or her prior approval [30 ILCS 500/1-10]. Anticipated litigation is that which the OLG may prosecute or defend before a court or administrative body and actions necessary to prepare for and conduct the effective legal prosecution or defense of litigation, including, but not limited to, contracting for expert witnesses.

44 Ill. Adm. Code 1600.15 Definition of Terms Used in This Part

"Bid" – The response to an Invitation for Bids.

"Bidder" – Any person who submits a bid.

"Brand Name Specification" – A specification limited to one or more items by manufacturers' names or catalogue numbers.

"Code" – The Illinois Procurement Code [30 ILCS 500].

"Concession" – The right or a lease to engage in a certain activity for profit on the lessor's premises (e.g., a refreshment or parking concession).

"Consulting Services" – Services provided by a business or person as an independent contractor to advise and assist an agency in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of a State agency. The services may or may not rise to the level of professional and artistic as defined in the Code and this Part.

"Contract" – A contract may be in written or oral form. The term contract as used in the Code and this Part includes any agreement or lease that requires the payment of State funds by the OLG in exchange for goods or services but it does not include bonds issued by or on behalf of any State agency or contracts relating to bonds issued by or on behalf of a State agency when the contractor or vendor is neither selected nor paid by the State agency.

"Contractor" or "Vendor" – The terms contractor and vendor are used interchangeably for purposes of the Code and this Part.

"Day" – Calendar day. In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a State holiday, in which event the period shall run to the end of the next business day.

"Items" – Anything that may be procured under this Code.

"Procurement Officer" – The Chief Procurement Officer (CPO) or appropriate State Purchasing Officer (SPO) who conducts the particular procurement, or a designee of either.

"Proposal" – The response to a Request for Proposals.

"Qualified Products List" – An approved list of supplies described by model or catalogue numbers that, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.

"Responsive Bidder" – A person who has submitted a bid that conforms in all material respects to the Invitation for Bids. [30 ILCS 500/1-85]

"Responsible Offeror" – A person who has submitted an offer that conforms in all material respects to the Request for Proposals.

"Specification" – Any description of the physical, functional, or performance characteristics, or of the nature of, a supply or service. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply or service item for delivery. Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout this Part.

"Specification for a Common or General Use Item" – A specification that has been developed and approved for repeated use in procurements.

"State Agency" – Includes all boards, commissions, agencies, institutions, authorities, and bodies politic and corporate of the State, created by or in accordance with the constitution or statute, of the executive branch of State government and does include colleges, universities, and institutions under the jurisdiction of the governing boards of the University of Illinois, Southern Illinois University, Illinois State University, Eastern Illinois University, Northern Illinois University, Western Illinois University, Chicago State University, Governors State University, Northeastern Illinois University, and the Board of Higher Education. However, this term does not apply to public employee retirement systems or investment boards that are subject to fiduciary duties imposed by the Illinois Pension Code or to the University of Illinois Foundation. "State Agency" does not include units of local government, school districts, community colleges under the Public Community College Act, and the Illinois Comprehensive Health Insurance Board. [30 ILCS 500/1-15.100]

"Supplies" – All personal property, including but not limited to equipment, materials, printing, and insurance, and the financing of those supplies. [30 ILCS 500/1-15.110]

"Unsolicited Offer" – Any offer other than one submitted in response to a solicitation.

44 Ill. Adm. Code 1600.25 Property Rights

44 Ill. Adm. Code 1600.525 Rules

Procurement under the jurisdiction of the OLG shall be conducted substantially in accordance with the Code and in accordance with this Part except as provided in this Section. The OLG may, in the same manner as State agencies under the jurisdiction of the CPO of CMS, without soliciting independent bids, proposals, or responses, procure goods and services from Master Contracts or other centralized purchasing arrangements established by CMS from vendors selected by CMS in accordance with a competitive selection process established by CMS under the Code.

44 Ill. Adm. Code 1600.1005 Exercise of Procurement Authority

a) The CPO shall ensure that all procurements of the OLG are in accordance with the Code and this Part and are in the best interests of the State. For procurements other than for issuance of State debt, the CPO may request that CMS conduct such procurements on behalf of the OLG. Such procurements conducted by CMS on behalf of the OLG shall be carried out in accordance with the Code and rules adopted by CMS thereunder. Additionally, the CPO may delegate to the CPO of CMS the authority to exercise on behalf of the CPO or any Procurement Officer any right, responsibility, duty or obligation vested in the CPO or any Procurement Officer under the Code or this Part.

b) The CPO may appoint one or more employees under his direction and supervision to serve as a SPO.

44 Ill. Adm. Code 1600.1510 Illinois Procurement Bulletin

a) Notice of any procurement action, by or on behalf of the OLG, that would be required by the Code to be published in the Illinois Procurement Bulletin if the OLG were a "State Agency" will be forwarded to CMS for inclusion in the appropriate volume of the Bulletin.

b) The Bulletin may be supplemented at the discretion of the OLG with publication elsewhere, including in the Official State Newspaper selected by CMS.

c) The notice shall contain at least the following information:

the Office of the Lieutenant Governor;
a brief purchase description;
a procurement reference number, if used;
the date the procurement is first offered;
the date, time, and location for making submissions;
the method of source selection;
the name of the Procurement Officer in charge; and
instructions on how to obtain detailed information.

d) Notice of each contract awarded that was subject of a notice in subsection (b) above shall be placed in the Bulletin. This notice shall contain at least the following information:

the information published in subsection (b) above;
the name of the vendor selected for award;
the contract price;
the number of unsuccessful responsive vendors; and
other disclosures required to be published in the Bulletin.

e) The following information regarding emergency procurements shall be published in the Bulletin within 14 days after commencement of performance under the emergency contract:

name of the procuring agency (and using agency, if different);
name of the vendor selected for award;
brief description of what the vendor will do or provide;
total price (if only an estimate is known, it shall be published, but a subsequent notice repeating all required information shall be published when the final amount is known);
reasons for using the emergency method of source selection; and
name of the Procurement Officer in charge.

f) The following information in regard to sole source procurements shall be published in the Bulletin at least 14 days prior to entering into the contract with the designated sole source vendor:

name of the procuring agency (or using agency, if different);
name of the vendor;
brief description of what the vendor will do or provide; and
name of the Procurement Officer in charge.

44 Ill. Adm. Code 1600.1570 Error in Notice

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin.

44 Ill. Adm. Code 1600.1580 Direct Solicitation

In addition to giving notice in the Bulletin, OLG may directly contact prospective vendors by providing copies of Invitations for Bids, Requests for Proposals, or other procurement information. Direct solicitation may be oral or in writing, but care should be taken to ensure that all vendors solicited in this manner receive the same information as provided to others. No direct solicitation shall be made prior to the date any required notice first appears in the Bulletin.

44 Ill. Adm. Code 1600.2005 General Provisions

a) Late Bids or Proposals, Late Withdrawals and Late Modifications

Definition. Any bid or proposal received after the time and date for receipt, and at other than the specified location, is late. A bid that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered, but the agency shall not be responsible for ensuring such subsequent delivery. Any withdrawal or modification of a bid or proposal received after the time and date set for opening of bids or proposals is late. If received at other than the specified location, the submission is late.
Treatment. No late bid or proposal, late modification, or late withdrawal will be considered unless the CPO, and not a designee, determines it would have been timely but for the action or inaction of State personnel directly serving the procurement activity (e.g., providing the wrong address).
Records. Records shall be made and, in accordance with the State Records Act [5 ILCS 160], kept for each late bid or proposal, late modification, or late withdrawal.
Other Submissions. Any other submission that has a time or date deadline shall be treated in the same manner as a late bid.

b) Extension of Time

The CPO may, prior to the date or time for submitting or modifying a bid or proposal, extend the date or time for the convenience of the State.
After opening bids or proposals, the CPO may request bidders or offerors who submitted timely bids or proposals to extend the time during which the State may accept the bids or proposals, provided that, with regard to bids, no other change is permitted. This extention does not provide an opportunity for others to submit bids or proposals.

c) Electronic and Facsimile Submissions

The Invitation for Bids or Request for Proposals may state that electronic and facsimile machine submissions will be considered if they are received at the designated office by the time and date set for receipt. Any required attachments will be submitted as stated in the IFB or RFP.
Electronic submissions authorized by specific language in the IFB or RFP will be opened in accordance with electronic security measures in effect at the purchasing agency at the time of opening. Unless the electronic submission procedures provide for a secure receipt, vendor assumes risk of premature disclosure due to submission in unsealed form.
Fax submissions authorized by specific language in the IFB or RFP will be placed in a sealed container upon receipt and opened as other submissions. Vendor assumes risk of premature disclosure due to submission in unsealed form.

d) Intent to Submit

e) Only One Bid or Proposal Received

new bids or offers may be solicited, including under sole source (Section 1600.2025) or emergency (Section 1600.2030) procedures; or
the procurement may be canceled.

f) Alternate or Multiple Bids or Proposals

Alternate bids or proposals may be accepted if:

A) permitted by the solicitation and in accordance with instructions in the solicitation; or

B) only one vendor responded, in which case the alternate submission may be evaluated and treated in accordance with Section 1600.2025 (Sole Economically Feasible Source Procurement) of this Part; or

C) the low bidder, who has met all requirements of the solicitation, has provided a lower cost alternative that meets all of the material requirements of the specifications.

Multiple bids or proposals may be accepted if:

A) permitted by the solicitation and submitted in accordance with instructions in the solicitation; or

B) only one vendor responded; then, one or more of the submissions may be evaluated, provided that, in the case of bids, only the lowest cost bid meeting specifications may be considered.

If a vendor clearly indicates a primary submission among alternate or multiple bids or proposals, then that primary submission shall be considered for award as though it were the only bid or proposal submitted by the vendor.

g) Multiple Items

h) "All or None" Bids or Proposals

All or none bids or proposals may be accepted if the evaluation shows an all or none award to be the lowest cost or best value of those submitted.

i) Conditioning Bids or Proposals Upon Other Awards

Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall:

be rejected unless the vendor removes the condition; or
be evaluated and award made to that vendor if the vendor is also independently evaluated as the winner of the other IFBs or RFPs, provided the agency need not delay procurement actions to accommodate the vendor's all or none condition.

j) Unsolicited Offers

Processing of Unsolicited Offers. The CPO may consider unsolicited offers.
Conditions for Consideration. An unsolicited offer must be in writing and must be sufficiently detailed to allow a judgment to be made concerning the potential utility of the offer to the State.
Award. An award may not be made based on an unsolicited offer in place of the notice and competition requirements of the Code and this Part except if that unsolicited offer meets the requirements for a small (Section 1600.2020), sole source (Section 1600.2025), or emergency (Section 1600.2030) procurement.

k) Clarification of Bids and Proposals

l) Extension of Time on Indefinite Quantity Contracts

m) Increase in Quantity on Definite Quantity Contracts

The quantity that may be ordered from a definite quantity contract without additional notice and competition may be increased by up to 20% provided the CPO determines that separate bidding for the additional quantity is not likely to achieve lower pricing. A particular procurement may specify a different percentage.
The quantity may be increased by any percentage provided the dollar value of the increase does not exceed the applicable small purchase (Section 1600.2020) threshold.

n) Subsequent Purchase Request

If, within 30 days after making an award to a particular vendor pursuant to a competitive sealed bid by or on behalf of the OLG, the OLG wishes to make another purchase request for the same item and for the same or lesser quantity, the CPO may contract with that vendor on the same terms and conditions, including price, without additional notice and competition, if such contract is acceptable to the vendor.

o) Assignment, Novation or Change of Name

Assignment. No State contract is transferable, or otherwise assignable, without the written consent of the CPO, provided, however, that a vendor may assign money receivable under a contract after due notice to the State. Assignment may require the execution of a contract with the assignee and in such cases the assignee must meet all requirements for contracting with the State.
Recognition of a Successor in Interest; Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the State;

C) the transferor waives all rights under the contract as against the State; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the State, furnish a satisfactory performance bond.

Change of Name. A vendor may submit a written request to change the name in which it holds a contract with the State. The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.
Reports. All change of name or novation agreements under this subsection (o) shall be reported to the CPO within 30 days after the date the agreement becomes effective so that the bid list may be updated.

q) Use of Source Selection Method that is Not Required

If the OLG uses a method of source selection that it is not, by law, required to use (e.g., use of a competitive sealed bid for a small purchase), it is not bound to strict compliance with the Code and rules governing the method of source selection used.

r) Vendor Signature

A bid or proposal submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the Procurement Officer within the time specified by that officer.

s) Stringing

Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited.

t) Confidential Data

44 Ill. Adm. Code 1600.2010 Competitive Sealed Bidding

a) Application

b) The Invitation for Bids

Use. The Invitation for Bids is used to initiate a competitive sealed bid procurement.
Content. The Invitation for Bids shall include, at a minimum, the following:

B) the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description; and

C) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

Incorporation by Reference. The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where such documents can be obtained.

c) Bidding Time

d) Bidder Submissions

Bid Form. The Invitation for Bids may include a form or format for submitting bids. If a form or format is specified, vendor shall submit bids as instructed.
Bid Samples and Descriptive Literature

A) Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

e) Public Notice

Publication. Every procurement for supplies and services in excess of the small purchase amount that must be procured using an Invitation for Bids shall be publicized in the Illinois Procurement Bulletin (see Section 1600.1510).
Public Availability. A copy of the Invitation for Bids shall be made available for public inspection.
Distribution. Invitations for Bids or Notices of the Availability of Invitations for Bids may be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition. Notices of Availability shall, at a minimum, indicate where Invitations for Bids may be obtained; generally describe what is needed; and indicate the due date for bids. Where appropriate, the Procurement Officer may require payment of a fee or a deposit for supplying the Invitation for Bids.

f) Pre-Bid Conference

g) Amendments to Invitations for Bids

Form. Amendments to Invitations for Bids shall be clearly identified and shall reference the portion of the IFB it amends.
Distribution. Amendments shall be made available to all prospective bidders known to have received an Invitation for Bids.
Timeliness. Amendments shall be made available within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, the amendment shall extend the response time. If necessary, the response time may be extended by fax or telephone and confirmed in the amendment.

h) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the Invitation for Bids prior to the time and date set for bid opening.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

i) Receipt, Opening and Recording of Bids

Receipt. Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening. If a bid is opened in error, the file shall so state.
Opening and Recording

B) The winning bid shall be available for public inspection after award, along with the record of each unsuccessful bid.

j) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the Invitation for Bids, except as permitted in the Code and this Part. The Invitation for Bids shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder. No bid shall be evaluated for any requirements or criteria that are not disclosed in the Invitation for Bids.
Responsibility. Responsibility of prospective vendors is covered by Section 1600.2045 (Responsibility) of this Part.
Responsiveness. A bid must conform in all material respects to the Invitation for Bids.

i) inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

ii) examination of such elements as appearance, finish, taste, or feel;

iii) other examinations to determine whether it conforms with any other purchase description requirements.

Determination of Lowest Bidder. Following determination of product or service acceptability as set forth in this subsection (j), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the Invitation for Bids. Only objectively measurable criteria that are set forth in the Invitation for Bids shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost and ownership or life-cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible such evaluation factors shall be reasonable estimates based upon information the State has available concerning future use and shall provide for the equitable treatment of all bids. Pricing for optional supplies or services, or for renewal terms, may be considered, particularly when the pricing for such items or terms is unbalanced when compared to other pricing in the bid.
Price Negotiation. Negotiations are permitted with the low bidder to obtain a lower price for the item bid.

k) Documentation of Award

Following award, a record showing the successful bidder shall be made a part of the procurement file.

l) Award to Other Than Low Bidder

The Procurement Officer may award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest. The name of the bidder selected, pricing, and the reasons for selecting this bidder instead of the low bidder must be published in the Bulletin.
This action may be appropriate when the difference in quality or speed of delivery is so great as compared to the difference in price, and considering the needs of the agency, that a best value award is justified. However, if the difference in price is significant, the Procurement Officer may not utilize this provision.

m) Publicizing Award

The successful bidder shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication. In procurements over the small purchase limit set in Section 1600.2020 (Small Purchases) of this Part, notice of award shall be published in the Bulletin.

44 Ill. Adm. Code 1600.2012 Multi-Step Sealed Bidding

a) Definition. Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the State, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered.

to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and
to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, where appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description.

c) Pre-Bid Conference in Multi-Step Sealed Bidding

Prior to the submission or evaluation of unpriced technical offers, a pre-bid conference as contemplated by Section 1600.2010(f) (Pre-Bid Conference) may be conducted by the Procurement Officer.

d) Procedure for Phase One of Multi-Step Sealed Bidding

Form. Multi-step sealed bidding shall be initiated by the issuance of an Invitation for Bids in the form required by Section 1600.2010 (Competitive Sealed Bidding), except as hereinafter provided. In addition to the requirements set forth in Section 1600.2010, the multi-step Invitation for Bids shall state:

A) that unpriced technical offers are requested;

B) whether priced bids are to be submitted at the same time as unpriced technical offers; if they are, such priced bids shall be submitted in a separate sealed envelope;

D) the criteria to be used in the evaluation of the unpriced technical offers;

E) that the Procurement Officer may conduct oral or written discussions of the unpriced technical offers;

Amendments to the Invitation for Bids. After receipt of unpriced technical offers, amendments to the Invitation for Bids shall be distributed only to bidders who submitted unpriced technical offers, and they shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the Procurement Officer, a contemplated amendment will significantly change the nature of the procurement, the Invitation for Bids may be canceled in accordance with Section 1600.2040 (Cancellation of Solicitation; Rejection of Bids or Proposals) of this Part and a new Invitation for Bids issued.
Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers submitted by bidders shall be opened in the presence of at least one witness. Such offers shall not be disclosed to unauthorized persons.
Evaluation of Unpriced Technical Offers. The unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the Invitation for Bids. The unpriced technical offers shall be categorized as:

A) acceptable;

B) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

C) unacceptable, in which case the Procurement Officer shall record in writing the basis for finding an offer unacceptable, notify the vendor and make it part of the procurement file.

The Procurement Officer may initiate phase two of the procedure if, in the Procurement Officer's opinion, there are sufficient acceptable unpriced technical offers to assure effective price competition in the second phase without technical discussions. If the Procurement Officer finds discussion of the technical offers is necessary, the Procurement Officer shall commence discussions of the unpriced technical proposals.
Discussion of Unpriced Technical Offers. The Procurement Officer may conduct discussions with any vendor who submits an acceptable or potentially acceptable technical offer. During the course of such discussions, the Procurement Officer shall not disclose any information derived from one unpriced technical offer to any other bidder. Any such bidder may submit supplemental information amending its technical offer at any time until the closing date established by the Procurement Officer. Such submission may be made at the request of the Procurement Officer or upon the bidder's own initiative.
Unacceptable Unpriced Technical Offer. When the Procurement Officer determines a bidder's unpriced technical offer to be unacceptable, such offeror shall not be afforded an additional opportunity to supplement its technical offer.

e) Procedure for Phase Two

Initiation. Upon the completion of phase one, the Procurement Officer shall either:

A) open priced bids submitted in phase one (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; or

B) if priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

Conduct. Phase two shall be conducted as any other competitive sealed bid procurement except:

A) no public notice need be given of this invitation to submit priced bids because such notice was previously given;

B) after award, the unpriced technical offer of the successful bidder shall be disclosed as follows: The Procurement Officer shall examine written requests of confidentiality for trade secrets and proprietary data in the technical offer of such bidder to determine the validity of any such requests. If the parties do not agree as to the disclosure of data, the Procurement Officer shall reject the offer. Such technical offer shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data; and

C) unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection.

44 Ill. Adm. Code 1600.2015 Competitive Sealed Proposals

a) Competitive Sealed Proposals may be used whenever permitted by the Code and as described in this Part.

electronic data processing equipment, software, and services;
telecommunications equipment, software, and services;
consulting services; and
employee benefits and management of those benefits.

c) Competitive Sealed Proposals may be used on a case-by-case basis when it is determined by the Procurement Officer that competitive sealed bidding is either not practicable or not advantageous.

"Practicable" Distinguished from "Advantageous." As used in Section 20-15 (Competitive Sealed Proposals) of the Illinois Procurement Code and in this Section, "practicable" denotes what may be accomplished or put into practical application, and "advantageous" connotes a judgmental assessment of what is in the State's best interest. Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest. Before a procurement may be conducted by competitive sealed proposals, the Procurement Officer shall determine in writing that competitive sealed bidding is either not practicable or not advantageous to the State.
General Discussion

A) If competitive sealed bidding is not practicable or is not advantageous, competitive sealed proposals should be used.

i) it permits discussions with competing offerors and changes in their proposals, including price; and

ii) it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract.

When Competitive Sealed Bidding Is Not Practicable. Competitive sealed bidding is not practicable unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the Invitation for Bids. Factors to be considered in determining whether competitive sealed bidding is not practicable include:

A) whether the contract needs to be other than a fixed-price type;

B) whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

C) whether offerors may need to be afforded the opportunity to revise their proposals, including price;

E) whether the primary consideration in determining award may not be price.

When Competitive Sealed Bidding Is Not Advantageous. A determination may be made to use competitive sealed proposals if it is determined that it is not advantageous to the State, even though practicable, to use competitive sealed bidding. Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

A) if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State; and

d) Content of the Request for Proposals

The Request for Proposals shall be prepared in accordance with Section 1600.2010 (Competitive Sealed Bidding), provided that it shall also include:

a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions; and
a statement of when and how price should be submitted.

e) Receipt and Registration of Proposals

Proposals and modifications shall be opened publicly at the time, date and place designated in the Request for Proposals. Opening shall be witnessed by a State employee or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that shall include the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service item offered. The record of proposals shall be open to public inspection after award of the contract.
Proposals and modifications shall be opened in a manner to avoid disclosing contents to competitors. Only State personnel and contractual agents may review the proposals prior to award.

f) Evaluation of Proposals

Evaluation Factors in the Request for Proposals. The Request for Proposals shall state all of the evaluation factors, including price, and their relative importance.
Evaluation. The evaluation shall be based on the evaluation factors set forth in the Request for Proposals. Factors not specified in the Request for Proposals shall not be considered. Numerical rating systems may be used but are not required.
Classifying Proposals. For the purpose of conducting discussions, proposals may be initially classified as:

A) acceptable;

B) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

C) unacceptable. Offerors whose proposals are unacceptable shall be so notified promptly.

g) Proposal Discussions with Individual Offerors

"Offerors" Defined. For the purposes of Section 20-15(f) (Competitive Sealed Proposals, Discussion with Responsible Offerors and Revisions to Proposals) of the Illinois Procurement Code and of this Section, the term "offerors" includes only those businesses submitting proposals that are acceptable or potentially acceptable. The term shall not include businesses that submitted unacceptable proposals.
Purposes of Discussions. Discussions are held to:

A) promote understanding of the State's requirements and the offerors' proposals; and

B) facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the Request for Proposals.

Conduct of Discussions. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. If during discussions there is a need for any substantial clarification of, or change to, the Request for Proposals, the Request shall be amended to incorporate such clarification or change. Auction techniques (revealing one offeror's price to another) and disclosure of any information from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.
Best and Final Offers. The Procurement Officer may request best and final offers from those offerors deemed acceptable after completion of any discussions. Best and final offers shall be submitted by a specified date and time. The Procurement Officer may conduct additional discussions or change the State's requirements and require another submission of best and final offers. The scope of the best and final and the number of vendors allowed to participate shall be defined by the Procurement Officer. If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediately previous offer will be construed as its best and final offer.

h) Award

i) Publicizing Awards

The successful offeror shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication. When the award exceeds the small purchase limit set in Section 1600.2020 of this Part, notice of award shall be published in the Bulletin.

44 Ill. Adm. Code 1600.2020 Small Purchases

a) Application

Procurements of $25,000 or less for supplies or services, other than professional and artistic, and $30,000 or less for construction may be made using the method of source selection determined by the Procurement Officer to be most appropriate to the circumstances.
Procurements of less than $20,000 for professional and artistic services and that have a non-renewable term of one year or less may be made using the method of source selection determined by the Procurement Officer to be most appropriate to the circumstances.
Any change identified by the United States Department of Labor in the Consumer Price Index, as certified by CMS, for All Urban Consumers for the period ending December 31, 1998, and for each year thereafter shall be used to adjust the small purchase maximums that shall be applicable for the fiscal year beginning July 1, 1999. The small purchase maximums shall be likewise recalculated for each July 1 thereafter.

c) If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not to exceed limit applicable to the type of procurement (see subsection (a) above).

e) Procurement requirements shall not be artificially divided to avoid using the other source selection methods set forth in Section 20-5 of the Illinois Procurement Code.

f) If there is a repetitive need for small procurements of the same type, the Procurement Officer shall consider issuing a competitive sealed bid or proposal for procurement of those needs.

History

Source: Amended at 23 Ill. Reg. 7746, effective June 23, 1999

44 Ill. Adm. Code 1600.2025 Sole Economically Feasible Source Procurement

a) Application

The provisions of this Part apply to procurement from a sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement is within the limit set in Section 1600.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 1600.2030 (Emergency Procurements) of this Part.

b) Conditions for Use of Sole Source Procurement

Sole source procurement is permissible when a requirement is available from only a single supplier or when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one potential bidder or offeror authorized to provide that item. The following are examples of circumstances that could necessitate sole source procurement:

the compatibility of equipment, accessories, replacement parts, or service is a paramount consideration;
a sole supplier's items are needed for trial use or testing;
a sole supplier's item is to be procured for commercial resale;
public utility regulated services are to be procured;
the item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;
the procurement of the media for advertising;
the procurement of art or entertainment services; and
changes to existing contracts (see subsection (c) below).

c) Changes

Changes to an existing contract that are germane and reasonable in scope and cost in relation to the original contract or program, that are necessary or desirable to complete the contract or program, and that can be best accomplished by the contract holder may be procured under this Section when the Procurement Officer determines that the cost of delay or disruption to the contract or program, and the cost of a new solicitation, clearly indicate that the existing vendor is the sole economically feasible source.
A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 1600.2020 of this Part or that is an emergency as defined in Section 1600.2030 of this Part may be made in accordance with procedures governing those Sections and need not comply with these sole source procedures. A change in the length of the contact that does not exceed 30 days and other minor, immaterial changes to the scope or administrative provisions of a contract shall not be considered changes subject to these sole source procedures.

d) Procurement Officer to Determine

e) Publication of Sole Source Notice

The Procurement Officer shall submit to CMS for publication in the Bulletin notice of intent to contract with that vendor at least 14 days prior to execution of the contract.

If no challenge to this determination is made by a vendor within the 14 day period, the Procurement Officer may execute a contract with that vendor.
If a challenge is received, the Procurement Officer shall consider the information and shall commence a competitive procurement if the Procurement Officer determines that more than one economically feasible source may be available and the sole source designation is, therefore, not appropriate, unless an emergency situation exists.

f) Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, to reach contract terms, including price, and shall maintain a record of each sole source procurement showing:

the vendor's name;
the amount and type of the contract;
what was procured; and
the identification number of the contract file.

44 Ill. Adm. Code 1600.2030 Emergency Procurements

a) Applications

The provisions of this Part apply to every procurement over the small purchase limit set in Section 1600.2020 (Small Purchases) of this Part that is not a sole source procurement under Section 1600.2025 of this Part made under emergency, including quick purchase, conditions.

b) Definition of Emergency Conditions

Procurements may be made under this Section 1600.2030 in the following circumstances:

Traditional circumstances include but are not limited to:

A) public health or safety, including the health or safety of any particular person, is threatened;

B) immediate repairs are needed to State property to protect against further loss or damage to State property, or to prevent loss or damage to State property;

C) immediate action is needed to prevent or minimize serious disruption in State services;

D) action is needed to ensure the integrity of State records;

F) immediate action is necessary to avoid lapsing or loss of federal or donated funds;

G) the need for items to protect or further State interests is immediate and use of other competitive source selection procedures under the Code and this Part cannot be accomplished without significant risk of causing disadvantage to the State.

After Unsuccessful Competitive Sealed Bidding or Proposals or Request for Proposals. When bids or proposals received pursuant to a competitive sealed bid or competitive sealed proposal method are unreasonable or noncompetitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals, and if emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding, an emergency procurement may be made.
Extension to Allow Competition. Extending an existing contract for such period of time as is needed to conduct a competitive method of source selection where terminating or allowing the contract to terminate would not be advantageous to the State.
Quick Purchase.

A) A supplier announces bankruptcy, cessation of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is more advantageous to the State than instituting a competitive procurement under the provisions of this Part for the supplies or services;

B) Items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a purchase immediately to take advantage of the availability and price;

C) availability of rare items such as books of historical value.

c) Scope of Emergency Conditions

Emergency procurements shall be limited to the items, quantity and term necessary to meet the emergency need.

d) Source Selection Methods

e) Determination and Record of Emergency Procurement

Determination. The Procurement Officer shall make a written determination stating the basis for an emergency procurement and for the selection of the particular vendor. Such determinations shall be kept in the contract file of the Procurement Officer.
Record. An affidavit of each emergency procurement shall be filed with the Auditor General within 10 days after the procurement and shall include the following information:

A) the vendor's name;

B) the amount and type of the contract, provided that if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known;

C) a description of what the vendor will do or provide;

D) the reasons for using the emergency method of source selection.

Notice of the emergency procurement shall be published in the Bulletin in accordance with Subpart D of this Part.

44 Ill. Adm. Code 1600.2035 Competitive Selection Procedures for Professional and Artistic Services

a) Application

The provisions of this Section apply to every procurement of professional and artistic services except those subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and except as provided in subsection (e) below.
"Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 500/1-15.60].

b) Professional and artistic services are further defined as follows:

"Qualified by education" means the individual who would perform the services must have obtained the level of education specified in the Request for Proposals.
"Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the Request for Proposals.
"Qualified by technical ability" means the individual who would perform the services must demonstrate a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the Request for Proposals.
An essential element distinguishing professional and artistic services from other services is confidence, trust, and belief in not only the ability, but the talent, of the individual performing the service. These services are primarily for intellectual or creative skills. Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts. (See Illinois Attorney General Opinion S-256, January 20, 1971.)
If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.

law;
accounting;
medicine;
dentistry; and
clinical psychology.

d) Architect, engineering and land surveying services shall be procured pursuant to the procedures of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535]. Such procurements are not subject to the procedures for other professional services established in the Code or this Part.

e) Conditions for Use of Competitive Selection Procedures

Except as authorized under Section 20-25 (Sole Source Procurement) or Section 20-30 (Emergency Procurements) of the Code, these competitive selection procedures shall be used for all procurements of professional and artistic services of $20,000 or more. Services of less than $20,000 and for a nonrenewable term of one year or less may be procured in accordance with Section 1600.2020 (Small Purchases) of this Part.

f) Prequalification

g) Public Notice of Competitive Selection Procedures

Notice of the need for professional and artistic services shall be made by the Procurement Officer in the form of a Request for Proposals.
Notice shall be given as provided in Section 1600.2010 (Competitive Sealed Bidding) of this Part.
Notice shall also be distributed to prequalified persons interested in performing the services required by the proposed contract.

h) Request for Proposals

Contents. The Request for Proposals shall be in the form specified by the CPO and shall contain at least the following information:

A) the type of services required;

B) a description of the work involved;

C) an estimate of when and for how long the services will be required;

D) the type of contract to be used;

E) a date by which proposals for the performance of the services shall be submitted;

F) a statement of the minimum information that the proposal shall contain, which may, by way of example, include:

i) the name of the offeror, the location of the offeror's principal place of business and, if different, the place of performance of the proposed contract;

ii) if deemed relevant by the Procurement Officer, the age of the offeror's business and average number of employees over a previous period of time, as specified in the Request for Proposals;

iii) the abilities, qualifications, and experience of all persons who would be assigned to provide the required services;

v) a plan explaining how the services will be performed;

G) price (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package); and

H) the factors to be used in the evaluation and selection process and their relative importance.

Evaluation. Proposals shall be evaluated only on the basis of evaluation factors stated in the Request for Proposals. Price will not be evaluated until ranking of all proposals and identification of the most qualified vendor. The relative importance of the evaluation factors will vary according to the type of services being procured. The minimum factors are:

A) the plan for performing the required services;

C) the personnel, equipment, and facilities to perform the services currently available or demonstrated to be made available at the time of contracting; and

D) a record of past performance of similar work.

i) Pre-Proposal Conference

A pre-proposal conference, if appropriate, shall be conducted in accordance with Section 1600.2010(f) (Pre-Bid Conference). Such a conference may be held anytime prior to the date established for submission of proposals.

j) Delivery, Receipt and Handling of Proposals

Proposals shall be submitted to and opened by the CPO.
Public Opening

A) Proposals and modifications shall be opened publicly at the time, date and place designated in the Request for Proposals.

C) Proposals and modifications shall be opened in a manner designed to avoid disclosing contents to competitors. Only State personnel and contractual agents may review the proposals prior to award.

D) Proposals of offerors who are not awarded the contract shall not be open to public inspection.

k) Discussions

Discussions Permissible. The Procurement Officer may conduct discussions with any offeror to:

A) determine in greater detail such offeror's qualifications; and

B) explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach. The Procurement Officer may allow changes to the proposal based on those discussions.

No Disclosure of Information. Discussions shall not disclose any information derived from proposals submitted by other offerors, and the agency conducting the procurement shall not disclose any information contained in any proposals until after award of the proposed contract has been made. The proposal of the offeror awarded the contract shall be open to public inspection except as otherwise provided in the contract.

l) Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation, and discussion, the Procurement Officer shall rank the acceptable offerors in the order of their respective qualifications.

m) Evaluation of Pricing Data

Pricing submitted for all proposals timely submitted shall be opened and ranked.

If the low price is submitted by the most qualified vendor, the Procurement Officer may award to that vendor.
If the price of the most qualified vendor is not low and if it does not exceed $25,000, the Procurement Officer may award to that vendor.
If the price of the best qualified vendor exceeds $25,000, the Procurement Officer must state why a vendor other than the low priced vendor was selected and that determination shall be published in the Bulletin.

n) Negotiation and Award of Contract

General. The Procurement Officer shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The Procurement Officer may, in the interest of efficiency, negotiate with other vendors, while negotiating with the best qualified vendor.
Elements of Negotiation. At a minimum, contract negotiations shall be directed toward:

A) making certain that the offeror has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services;

B) determining that the offeror will make available the necessary personnel and facilities to perform the services within the required time; and

C) agreeing upon compensation that is fair and reasonable, taking into account the estimated value of the required services and the scope, complexity, and nature of such services.

Successful Negotiation of Contract with Best Qualified Offeror

Failure to Negotiate Contract with Best Qualified Offeror

B) Upon failure to negotiate a contract with the best qualified offeror, the Procurement Officer may enter into negotiations with the next most qualified offeror.

o) Multiple Awards

The Procurement Office may enter into negotiations with the next most qualified vendor or vendors when the purchasing agency has a need that requires multiple vendors under contract.

q) Notice of Award

Written notice of award shall be public information and made a part of the contract file. Publication shall be in the next available issue of the Bulletin.

s) Post Performance Review

The Purchasing Officer shall provide a synopsis of the contract and shall rate the vendor's performance. A copy of the completed form shall be maintained in the files of the CPO.

44 Ill. Adm. Code 1600.2036 Other Methods of Source Selection

a) Split Award

An award of a definite quantity requirement may be split between bidders or offerors. Each portion shall be for a definite quantity and the sum of the portions shall be the total definite quantity required. A split award may be used only when award to more than one bidder or offeror for different amounts of the same item are necessary to obtain the total quantity or the required delivery.
The Procurement Officer shall make a written determination setting forth the reasons for the split award, which determination shall be made a part of the procurement file.

b) Multiple Award

A multiple award is an award of an indefinite quantity contract to more than one bidder or offeror when the State is obligated to order all of its actual requirements from those vendors.
A multiple award may be made when award to two or more bidders or offerors for similar products is necessary for adequate delivery, service, or product compatibility. Any multiple award shall be made in accordance with the provisions of Section 1600.2010 (Competitive Sealed Bidding), Section 1600.2015 (Competitive Sealed Proposals), Section 1600.2020 (Small Purchases), and Section 1600.2030 (Emergency Procurements), as applicable. Awards shall not be made for the purpose of simply dividing the business or to select products or suppliers to allow for user preference unrelated to utility or economy. Any such awards shall be limited to the least number of suppliers necessary to meet the valid requirements of State agencies.
The OLG shall reserve the right to take bids separately if a particular quantity requirement arises that exceeds its normal requirement or an amount specified in the contract.
If a multiple award is anticipated, the solicitation shall state this fact as well as the criteria for award.
In a multiple award situation, one vendor may be designated as the primary recipient of orders. The other awardees may receive orders in the event the primary vendor is unable to deliver or for other reasons as determined by the Procurement Officer.

c) Term and Condition Contracts

A term and condition contract contains agreed contractual terms and conditions established for the convenience of the parties to be used in conjunction with a subsequent procurement and processed in accordance with the requirements of the Code and this Part. A term and condition contract is not a procurement. It creates no obligation on the part of the OLG to procure from the vendor.
Orders may be placed against term and condition contracts without use of any prescribed method of source selection for convenience of processing sole source, emergency or small procurements.

d) Auction

e) Federal Requirements

f) Donations

When a procurement will have the majority of funding from a donation, the terms of which donation require use of particular procurement or contracting procedures, the Procurement Officer may follow those procedures, but shall follow the Code and this Part whenever practicable.
Donations may be acknowledged by the donee agency in a manner appropriate to the type of donation and the program activity associated with the donation. Acknowledgment may include, but need not be limited to, public announcement at the event or in donee agency publications, and inviting the donor to attend the program activity associated with the donation.

44 Ill. Adm. Code 1600.2037 Tie Bids and Proposals

a) Tie bids or proposals are those from responsive and responsible vendors that are identical in price or evaluation and represent the low price.

b) Tie bids or proposals will be treated as follows:

If the tied vendors include an Illinois resident vendor, the Illinois resident vendor shall be given the award. In all other situations, including if two or more Illinois resident bidders are tied, the decision shall be made in accordance with this subsection (b). "Illinois resident vendor" has the meaning given in Section 1600.4510 (Resident Bidder Preference) of this Part.
If there is a significant difference in responsibility (including ability to provide the service or deliver in the quantity and at the time required), the award will be made to the vendor who is deemed to be the most responsible. A vendor who has had experience in contracting with the State shall be given additional consideration in determining responsibility if the Procurement Officer determines that dealing with a vendor that has knowledge of State requirements, contracts, job sites, payment practices and such other factors and with which there has been favorable past experience increases the likelihood of successful performance.
If there is no significant difference in responsibility, but there is a difference in the quality of the supplies or services offered, the vendor offering the best quality will be accepted.
If there is no significant difference in responsibility and no difference in quality of the supplies or services offered, the vendor offering the earliest delivery time will be accepted in any case in which the solicitation specified that the needs of the agency require delivery as early as possible.
If the bids or proposals are equal in every respect, the award shall be made by lot unless the Procurement Officer determines that splitting the award among two or more of the tied bidders is in the best interest of the State. Awards may be split if all affected bidders agree, if splitting is feasible given the type of supplies or services requested, if overall pricing would not increase, if delivery would be better ensured, or if necessary or desirable to promote future competition.

c) Record

Each SPO shall provide a report to the CPO on a quarterly basis of all procurements on which tie bids or proposals were received. The report shall provide at least the following information:

the identification number of the solicitation;
a description of what was procured; and
a listing of all the bidders and the prices submitted.

44 Ill. Adm. Code 1600.2038 Mistakes

a) General

Corrections to bids, proposals or other procurement processes are allowed, but only to the extent not contrary to the best interest of the State or the fair treatment of other bidders.

b) Mistakes Discovered Before Opening

A vendor may correct mistakes discovered before the time and date set for opening by withdrawing or correcting as provided in this Section.

c) Confirmation of Mistake

d) Mistakes in Bids Discovered After Opening but Before Award

This subsection (d) sets forth procedures to be applied in situations in which mistakes in bids are discovered after the time and date set for bid opening but before award.

Minor informalities. A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation of a bid from the exact requirement of the Invitation for Bids, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery, or contractual conditions is negligible). The Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the State. Examples of minor informalities as to form include the failure of a bidder to:

A) return the number of signed bids required by the Invitation for Bids;

B) acknowledge receipt of an amendment to the Invitation for Bids, but only if:

i) it is clear from the bid that the bidder received the amendment and intended to be bound by its terms; or

ii) the amendment involved had a negligible effect on price, quantity, quality, or delivery.

Mistakes Where Intended Correct Bid Is Evident. If the mistake and the intended correct bid are clearly evident on the face of the bid document, the bid shall be corrected to the intended correct bid and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid document are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors.
Mistakes Where Intended Correct Bid Is Not Evident. A bidder may be permitted to withdraw a low bid if:

A) a mistake is clearly evident on the face of the bid document but the intended correct bid is not similarly evident; or

B) the bidder submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

e) Mistakes in Proposals Discovered After Receipt, but Before Award

This subsection (e) sets forth procedures to be applied in four situations in which mistakes in proposals are discovered after receipt of proposals but before award.

During Discussions; Prior to Best and Final Offers. Once discussions are commenced with any offeror or after best and final offers are requested, any offeror may freely correct any mistake prior to the date set for conclusion of discussions or for receipt of best and final offers.
Minor Informalities. Minor informalities, unless otherwise corrected by an offeror as provided in this Section, shall be treated as they are under subsection (d).
Correction of Mistakes. If discussions are not held or if the best and final offers upon which award will be made have been received, mistakes may be corrected and the intended correct offer considered only if:

A) the mistake and the intended correct offer are clearly evident on the face of the proposal, in which event the proposal may not be withdrawn; or

Withdrawal of Proposals. If discussions are not held, or if the best and final offers upon which award will be made have been received, the offeror may be permitted to withdraw the proposal if:

A) the mistake is clearly evident on the face of the proposal and the intended correct offer is not;

B) the offeror submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made but does not demonstrate the intended correct offer; or

f) Mistakes Discovered After Award

g) Determinations Required

44 Ill. Adm. Code 1600.2040 Cancellation of Solicitations; Rejection of Bids or Proposals

a) Scope of this Section

b) Policy

Any solicitation may be canceled when the Procurement Officer believes cancellation to be in the State's best interest. Nothing shall compel the award of a contract.

c) Cancellation of Solicitation; Rejection of All Bids or Proposals Prior to Opening

As used in this Section, "opening" means the date set for opening of bids, receipt of unpriced technical offers in multi-step sealed bidding, or receipt of proposals in competitive sealed proposals.
Prior to opening, a solicitation may be canceled in whole or in part when the Procurement Officer determines in writing that such action is in the State's best interest for reasons including, but not limited to:

A) the OLG no longer requires the supplies or services;

B) the OLG no longer can reasonably expect to fund the procurement; or

C) proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable.

When a solicitation is canceled prior to opening, notice of cancellation shall be sent to all businesses that responded to the solicitation.
The notice of cancellation shall:

A) identify the solicitation;

B) briefly explain the reason for cancellation; and

C) where appropriate, explain that an opportunity will be given to compete on any resolicitation or any future procurements of similar supplies or services.

d) Cancellation of Solicitation; Rejection of All Bids or Proposals After Opening

After opening but prior to award, all bids or proposals may be rejected in whole or in part when the Procurement Officer determines in writing that such action is in the State's best interest. Such reasons may include, but are not limited to:

A) the supplies or services being procured are no longer required;

B) ambiguous or otherwise inadequate specifications were part of the solicitation;

C) the solicitation did not provide for consideration of all factors of significance to the State;

D) prices exceed available funds and it would not be appropriate to adjust quantities to come within available funds;

E) all otherwise acceptable bids or proposals received are at clearly unreasonable prices; or

F) there is reason to question whether the bids or proposals may not have been independently arrived at in open competition, may have been collusive, or may have been submitted in bad faith.

When the solicitation is canceled or when all bids or proposals are rejected, all vendors who submitted bids or proposals shall be sent a notice upon request informing them of the reasons for the cancellation or rejection.

e) Documentation

The reasons for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

f) Rejection of Individual Bids or Proposals

General. This subsection (f) applies to rejections of individual bids or proposals in whole or in part.
Notice in Solicitation. Each solicitation shall provide that any bid or proposal may be rejected in whole or in part when in the best interest of the State as provided in this Section.
Reasons for Rejection. Reasons for rejecting a bid or proposal may include, but are not limited to:

A) the business that submitted the bid or proposal is nonresponsible as determined under Section 1600.2045 (Responsibility) of this Part;

B) the bid or proposal is not responsive, that is, it does not conform in all material respects to the solicitation;

C) the proposal ultimately (that is, after any opportunity has passed for altering or clarifying the proposal) fails to meet the announced requirements of the State in some material respect;

E) the proposed price is clearly unreasonable.

Notice of Rejection. Upon request, unsuccessful bidders or offerors shall be advised of the reasons for rejection.

44 Ill. Adm. Code 1600.2043 Suppliers

a) The OLG may contract with any qualified source of supply, but should give preference to Directed Sources, and should consider the following Special Sources.

b) Directed Sources − State-Produced Supplies or Services

Correctional Industries. The CPO, after consulting with the Department of Corrections, shall determine the type and extent of the preference OLG shall give to supplies produced or services performed by Correctional Industries. Factors to be considered in determining the preference include, but are not limited to, the ability of Correctional Industries to meet the OLG's requirements, the price charged and the reason for the Correctional Industries program.
Central Services. Supplies and services available from the program operations of CMS shall be utilized unless the CPO authorizes procurement from other sources.

c) Special Sources

Prior to any equipment procurement, the OLG will consider property available from the State and Federal Surplus Warehouses, which are under the jurisdiction of CMS.
Various supplies and services are available from qualified workshops for the disabled and procurement from these workshops is encouraged. Notice and competition is not required pursuant to Section 45-35 of the Code.
Various supplies and services are available from State agencies and other governmental units. These may be procured without notice and competition.

44 Ill. Adm. Code 1600.2045 Responsibility

a) Application

b) Standards of Responsibility

Standards. Factors to be considered in determining whether the standard of responsibility has been met may include, but are not limited to, whether a prospective vendor:

A) has available the appropriate financial, material, equipment, facility, and personnel resources and expertise (or the ability to obtain them) necessary to indicate its capability to meet all contractual requirements (the Procurement Officer may designate a level of financial resource below which the vendor will be deemed "not responsible");

B) is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments;

E) is qualified legally to contract with the State;

F) has supplied all necessary information in connection with the inquiry concerning responsibility;

H) pays prevailing wages, if required by law; and

I) is current in payment of all State of Illinois taxes, including the unemployment insurance tax.

Information Pertaining to Responsibility. The prospective vendor shall supply information requested by the Procurement Officer concerning the responsibility of such vendor. The State may supplement this information from other sources and may require additional documentation at any time. If such vendor fails to supply the requested information, the Procurement Officer shall base the determination of responsibility upon any available information, or may find the prospective vendor nonresponsible.

c) Ability to Meet Standards

The prospective vendor may demonstrate the availability of necessary financing, equipment, facilities, expertise, and personnel by submitting upon request:

evidence that such vendor possesses such necessary items;
acceptable plans to subcontract for such necessary items; or
a documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items.

d) Duty Concerning Responsibility

e) Written Determination of Nonresponsibility Required

If a vendor who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the CPO or the SPO. The final determination shall be made part of the procurement file.

f) Bond for Responsibility

Vendors not having a history of performance may be considered responsible if no other disqualifying factors exist. A bond or other security may be required of such vendors.

g) Affiliated Companies

44 Ill. Adm. Code 1600.2047 Security Requirements

a) A Procurement Officer may require that a vendor furnish bid, proposal, or performance security on OLG contracts. Whenever security is required, except as provided herein, the procurement document will clearly indicate the type and amount of security.

44 Ill. Adm. Code 1600.2050 Specifications

a) The OLG may use specifications or qualified products lists established or used by CMS.

b) Brand Name or Equal Specification

Brand name or equal specifications may be used when the Procurement Officer determines in writing that:

A) no specification for a common or general use specification or qualified products list is available;

B) time does not permit the preparation of another form of specification, not including a brand name specification;

C) the nature of the product or the nature of the State's requirement makes use of a brand name or equal specification suitable for the procurement; or

D) use of a brand name or equal specification is in the State's best interest.

Brand name or equal specifications shall seek to designate more than one brand as "or equal", and shall further state that substantially equivalent products to those designated will be considered for award.
Unless the Procurement Officer determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional, or performance characteristics that are required.
Where a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition. "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use. Burden of proof that the product is equal is on the bidder.

c) Brand Name Only Specification

Determination. A brand name only specification may be used only when the Procurement Officer makes a written determination that only the identified brand name item or items will satisfy the State's needs.
Use. Brand name alone may be specified in order to fill medical prescription needs, to stock State retail-type operations, to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the CPO. An agency may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time, and for that period the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected.
Competition. The Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit such sources to achieve whatever degree of competition is practicable. If only one source can supply the requirement, the procurement shall be made under Section 1600.2025 (Sole Economically Feasible Source Procurement) of this Part.
Small and Emergency Procurements. Brand name only specifications may be used when procuring items under the small (see Section 1600.2020 of this Part) and emergency (see Section 1600.2025 of this Part) provisions of this Part.

d) Proven Products

The supply or service may be rejected if it has not been offered to other governmental or commercial accounts for at least one year. Specifications may require that the supply or services have been used in business or industry for a specified period of time to be considered.

44 Ill. Adm. Code 1600.2055 Types of Contracts

a) Scope

b) Prohibition of Cost-Plus-a-Percentage-of-Cost Contracting

A percentage mark-up from an agreed price list is not a cost-plus-a-percentage-of-cost contract.
A percentage mark-up from the price of a supply or service selected by the State or another vendor under contract to the State is not a cost-plus-a-percentage-of-cost contract.

c) Types of Fixed-Price Contracts

Firm Fixed-Price Contract. A firm fixed-priced contract provides a price that is not subject to adjustment because of variations in the vendor's cost of performing the work specified in the contract.
Fixed-Price Contract with Price Adjustment

i) changes in the vendor's labor agreement rates as applied to an industry or area (such as are frequently found in contracts for the purchase of coal);

ii) changes due to rapid and substantial price fluctuations that can be related to an accepted index (such as contracts for gasoline, heating oils, and dental gold alloy); and

d) Cost-Reimbursement Contracts

Determination Prior to Use

B) Reimbursement of travel expenses in accordance with applicable travel control board regulations is authorized without further determinations.

Cost Contract. A cost contract provides that the vendor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee.
Cost-Plus-Fixed-Fee Contract. This is a cost-reimbursement type contract that provides for payment to the vendor of an agreed fixed fee in addition to reimbursement of allowable incurred costs. The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for such work. Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed. The fee is subject to adjustment only if the contract is modified to provide for an increase or decrease in the scope of work specified in the contract.
Cost Incentive Contracts

B) Fixed-Price Cost-Incentive Contract. In a fixed-price cost-incentive contract, the parties establish at the outset a target cost, a target profit (that is, the profit that will be paid if the actual cost of performance equals the target cost), a formula that provides a percentage increase or decrease of the target profit depending on whether the actual cost of performance is less than or exceeds the target cost, and a ceiling price. After performance of the contract, the actual cost of performance is arrived at based on the total incurred allowable costs as provided in the contract. The final contract price is then established in accordance with the formula using the actual cost of performance. The final contract price may not exceed the ceiling price. The vendor is obligated to complete performance of the contract, and, if actual costs exceed the ceiling price, the vendor suffers a loss.

C) Cost-Reimbursement Contract with Cost-Incentive Fee. In a cost-reimbursement contract with cost-incentive fee, the parties establish at the outset a target cost; a target fee; a formula for increase or decrease of fee depending on whether actual cost of performance is less than or exceeds the target cost, with maximum and minimum fee limitations; and a cost ceiling that represents the maximum amount that the State is obligated to reimburse the vendor. The vendor continues performance until the work is complete or costs reach the ceiling specified in the contract, including any modification thereof, whichever first occurs. After performance is complete or costs reach the ceiling, the total incurred, allowable costs reimbursed as provided in the contract are applied to the formula to establish the incentive fee payable to the vendor.

e) Performance Incentive Contracts

f) Time and Materials Contracts; Labor Hour Contracts

Time and materials contracts provide an agreed basis for payment for materials supplied and labor performed. Labor hour contracts provide only for the payment of labor performed. Such contracts shall, to the extent possible, contain a stated ceiling or an estimate that shall not be exceeded without prior State approval.

g) Definite Quantity and Indefinite Quantity Contracts

Definite Quantity. A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services either at specified times or when ordered.
Indefinite Quantity. An indefinite quantity contract is a contract for an indefinite amount of supplies or services to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type. Generally an approximate quantity or the best information available as to quantity is stated in the solicitation. The contract may provide a minimum quantity the State is obligated to order and may also provide for a maximum quantity provision that limits the State's obligation to order.
Requirements Contracts. A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the State to order all the actual requirements of designated State agencies during a specified period of time.

h) Leases

A lease is a contract for the use of supplies or real property under which title will not pass to the State at any time, except pursuant to an option to purchase.

i) Recovery Contracts

j) Option Provisions

Contract Provision. When a contract is to contain an option for renewal, extension, or purchase, notice of such provision shall be included in the solicitation. These options may be exercised without taking other procurement action when the option is established for exercise at the OLG's option, and there is no material change in the terms and conditions or any such change is dependent on a fixed formula or standard established in the original contract.
Lease with Purchase Option. A purchase option in a lease may be exercised only if the lease containing the purchase option was awarded under competitive sealed bidding or competitive sealed proposals, the leased supply or facility is the only supply or facility that can meet the State's requirements, the purchase option price is less than the small purchase limit or emergency conditions exist.

k) State Produced Supplies and Services

Notwithstanding any provision in any contract, supplies or services available from the State's own programs, such as Correctional Industries, may be ordered without violating any contract.

l) Extraordinary Quantities

m) Energy Conservation

The CPO may authorize an IFB, RFP or sole source negotiation for energy conservation measures whereby the OLG would make payment based on utility cost savings. Such contract shall require a clearly defined baseline of energy usage and method of measuring cost savings taking into account at least differing weather conditions, changes in facility, usage and cost of energy.

44 Ill. Adm. Code 1600.2060 Duration of Contracts - General

a) General

A multi-term contract for a term of up to 10 years is authorized when determined by the Procurement Officer to be in the best interest of the State.
The length of the payment term of bonds issued by or on behalf of a State agency shall be limited as provided in the statute authorizing the issuance of the bonds.
A software license may have a term longer than 10 years, including for a perpetual term, provided the payment term is limited to no more than 10 years.

c) Conditions for Use of Multi-Term Contracts

A multi-term contract may be used when:

special production of definite quantities or the furnishing of long-term services is required to meet State needs; or
a multi-term contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement.

d) Multi-Term Contract Procedure

The solicitation shall state:

the proposed term;
the amount of supplies or services required for the proposed contract period;
the type of pricing requested (e.g., firm for term);
how award will be determined.

e) Renewals

When the original procurement specifically called for an initial term plus renewals, the renewals may be exercised without further procurement activity, provided the initial term and the exercised renewals may not exceed 10 years, the terms and conditions do not change except as provided in the contract (such as price escalations tied to an index) and the option is reserved solely to the State or is by mutual agreement. A renewal option that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to competitive procurement procedures established by the Code and this Part.
When the original procurement was silent as to renewals, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part. This renewal shall start a new term not to exceed 10 years.
When a renewal will result in the total term, counting the initial term and any previous renewals, to exceed 10 years, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part. This renewal will start a new term that shall not exceed 10 years.

44 Ill. Adm. Code 1600.2560 Prevailing Wage

Public works
Printing
Janitorial services, window washing and security guard services having a monthly contract price of at least $200 or a yearly price of at least $2,000.

c) Prevailing Wage Rates

Prevailing wage rates, benefits and conditions will be those in effect on the first date of the contract, provided that, if the rate changes during the contract term and the amount of change is known before execution of the contract, then the contract rate will vary in like amount.
If the change in the collective bargaining agreement cannot be determined in advance, the contract will be changed by the amount of the change in wage rate and all components of price that are dependent on the usage rate, such as payroll taxes, worker's compensation insurance, vacation, sick days, and pension, provided that profit shall not increase due to prevailing wage increases. The OLG shall have the option to cancel the contract if the new price is unacceptable.
If the initial prevailing wage, etc., cannot be determined prior to execution, contracts may be entered into and will remain valid for the stated term.

f) For printing contracts, location means one of the following areas:

Location

A) Cook County;

Where the printing is performed in a plant outside the jurisdiction of this State, it shall be deemed produced in the Illinois locality in which delivery of the printing ordered is required to be made. Where such printing is required to be delivered to more than one Illinois locality, such printing shall be deemed produced in the Illinois locality to which the largest dollar volume of printing under the contract is to be delivered.

g) For janitorial services, window washing and security guard services, location means the county in which the work is to be performed.

h) Prevailing wages, benefits and conditions will be determined by the Illinois Department of Labor.

44 Ill. Adm. Code 1600.2570 Equal Employment Opportunity; Affirmative Action

a) Public Contracts. Every party to a public contract and every eligible bidder shall:

Refrain from unlawful discrimination and discrimination based on citizenship status in employment and undertake affirmative action to assure equality of employment opportunity and eliminate the effects of past discrimination;
Comply with the procedures and requirements of the Department of Human Rights (DHR) regulations concerning equal employment opportunities and affirmative action;
Provide such information, with respect to its employees and applicants for employment, and assistance as DHR may reasonably request;
Have written sexual harassment policies that shall include, at a minimum, the following information:

A) the illegality of sexual harassment;

B) the definition of sexual harassment under State law;

C) a description of sexual harassment, utilizing examples;

D) the vendor's internal complaint process, including penalties;

E) the legal recourse, investigative and complaint process available through DHR and the Human Rights Commission;

F) directions on how to contact DHR and the Commission; and

G) protection against retaliation as provided by Section 6-101 of the Illinois Human Rights Act (IHRA) [775 ILCS 5]. A copy of the policies shall be provided to the Department of Human Rights upon request.

44 Ill. Adm. Code 1600.2800 All Costs Included

The IFB or RFP and any resulting contract should define whether prices cover transportation, transit insurance, delivery, installation, taxes, and any other costs.

44 Ill. Adm. Code 1600.4505 Procurement Preferences

The procurement preferences identified in Article 45 of the Code must be considered in developing procurement documents, conducting evaluations and drafting contracts. When any such preference is utilized, the Invitation for Bids, Request for Proposals, or other procurement request shall identify the preference and the conditions associated with such use. Subsequent Sections of this Subpart M identify conditions for the use of certain of the statutory preferences.

44 Ill. Adm. Code 1600.4510 Resident Bidder Preference

b) In breaking a tie, an Illinois resident vendor shall be given the award.

c) In all procurements involving out-of-state vendors, the CPO shall consult a list of states with in-state preference that shall be maintained by CMS.

44 Ill. Adm. Code 1600.4530 Correctional Industries

a) The CPO shall consult a listing, maintained by CMS, of supplies or services available from the Department of Corrections.

b) Procurement Officers are authorized to procure from Corrections without seeking competition or giving public notice.

44 Ill. Adm. Code 1600.4535 Sheltered Workshops for the Disabled

a) Use of Sheltered Workshop

The Procurement Officer may determine to contract with a sheltered workshop on the list maintained by CMS, and may do so without notice or competition.

b) Conditions for Use

c) Sheltered Workshop List

The CPO shall use the list of all qualified sheltered workshops and the supplies and services each qualified sheltered workshop provides, which is maintained by CMS.

d) Pricing Approval

While notice and competition is not required prior to contracting with a sheltered workshop, prices must be reasonable. Whether a price is reasonable will be determined based upon current market prices, historical prices, prices received by other State agencies for similar supplies or services, the policy of the Code to promote procurements from sheltered workshops, and other such relevant factors.
The State Use Committee, established under Section 45-35 of the Code, must approve contracts for reasonableness of price if:

A) the supply or service would ordinarily be subject to competitive sealed bidding or competitive sealed proposals methods of source selection; or

B) the supply or service is bid and the sheltered workshop is selected even though not the lowest responsible bidder.

State Use Committee approval is not required if:

A) the contract does not exceed the bid limit set in Section 1600.2020 of this Part and no bidding was conducted; or

B) the contract is let to the sheltered workshop under a competitive procedure.

When Committee approval is required, it will be given or denied in an expeditious manner so as not to disrupt procurement activities. Consideration will be at regularly scheduled meetings or through special telephone meetings conducted between regular meetings.

44 Ill. Adm. Code 1600.4540 Small Business

a) Set-Aside

b) Small Business List

c) Required Use

d) Withdrawal of Set-Aside

If the Procurement Officer determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the Procurement Officer shall reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question. When a small business set-aside is withdrawn, notification shall be published in the Illinois Procurement Bulletin with an explanation. After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with the limitations of the Code and this Part.

e) Criteria for Small Business

Unless the CPO provides a definition for a particular procurement that reflects industrial characteristics, a small business is one:

Independently owned and operated.
Not dominant in its field of operations. This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged. In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.
With annual sales for most recently ended fiscal year no greater than:

A) $7,500,000 for wholesale business;

B) $3,000,000 for construction business; or

C) $1,500,000 for retail business.

With no more than 250 employees if a manufacturing business.

If the business is any combination of retailer, wholesaler or construction business, then the annual sales for each component may not exceed the amounts shown in subsection (e)(3). For example, a business that is both a retailer and wholesaler may not have total sales exceeding $9,000,000 and the retail component may not exceed $1,500,000 and the wholesale component may not exceed $7,500,000. If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed the number shown in subsection (e)(4).
When computing the size status of a vendor, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates shall be included. Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or when a third party or parties controls or has the power to control both. In determining whether concerns are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management and contractual arrangements. However, a franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

44 Ill. Adm. Code 1600.4570 Contracting with Businesses Owned and Controlled by Minorities, Females and Persons with Disabilities

a) Introduction

b) Upon direction of the CPO, the OLG may establish set-asides and other such preferences for vendors certified under that Act.

c) Certification

Certification procedures are set forth in rules governing the Business Enterprise Act (44 Ill. Adm. Code 10).

d) The CPO may refer to the list of businesses that have been certified and maintained by CMS.

44 Ill. Adm. Code 1600.5013 Conflicts of Interest

c) Distributable income means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, which is distributed to those entitled to receive a share of such income. In the case of a for-profit corporation, distributable income means "dividends". When calculating entitlement to distributable income the entitlement shall be determined at the end of the company's most recent fiscal year.

44 Ill. Adm. Code 1600.5015 Negotiations for Future Employment

a) It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association, or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 500/50-15(a)]

History

Source: Amended at 22 Ill. Reg. 21422, effective November 25, 1998

44 Ill. Adm. Code 1600.5020 Exemptions

44 Ill. Adm. Code 1600.5030 Revolving Door

Effective January 15, 1999, the CPO shall identify in writing the designees whose jobs or whose position descriptions, are at least 51% directly related to State procurement. The following activities are directly related to State procurement: drafting specifications, preparing Invitations for Bids and Requests for Proposals, evaluating responses to Invitations for Bids and Requests for Proposals, negotiating contracts and supervising any of the foregoing. The CPO shall maintain that information for a period of at least two years following the end or revocation of the designation.

44 Ill. Adm. Code 1600.5035 Disclosure of Financial Interests and Potential Conflicts of Interest

b) For purposes of:

Section 50-35(b) of the Code, "parent entity" means a person who owns 100% of the bidding entity.
Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

e) "Competitively bid" means a contract let pursuant to Section 20-10, 20-15 and 20-35 of the Code.

f) "Subject to federal 10K reporting" means subject to the reporting Section 13 or 15(d) of the Securities Exchange Act of 1934. "10K disclosure" means a report required under Section 13 or 15(d) of the Securities Exchange Act of 1934.

g) Once a disclosure is made in relation to a particular contract, the disclosure need not be repeated if the contract is amended.

h) 10K Disclosures

Any vendor subject to federal 10K reporting requirements may submit its 10K to the State in satisfaction of the disclosure requirement of Section 50-35(b)of the Code provided the vendor also identifies the specific sections or parts in the 10K disclosure where the State may find information, if any, pertaining to those who have an ownership interest or an interest in the distributable income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State. If the financial interest or conflict of interest information requested by the State is not in the 10K, but is in a document referenced in the 10K, or in a document that may be submitted to the SEC in conjunction with or in lieu of the 10K, then that additional documentation shall be provided as well.
10K disclosures are available for public review. Any potential conflict of interest identified by the public and brought to the attention of the CPO or SPO shall be investigated.
In circumstances where a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code and for purposes of the Procurement Officer's duty to consider any conflict or potential conflict of interest that may exist, but that is not subject to specific disclosure requirements of the Code and this Part, and that is not personally known by the Procurement Officer, the duty of the Procurement Officer "publicly known or reasonably available to the public" shall be satisfied by taking into consideration information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure.

44 Ill. Adm. Code 1600.5510 Complaints Against Vendors

a) The purpose of this Section is to document performance of vendors.

b) Whenever a vendor fails to meet contract requirements, including but not limited to failure to deliver on time or meet specifications, the OLG shall take appropriate action to initiate a complaint to the vendor.

c) For relatively minor infractions, the OLG may initiate contact by telephone or in person. If not resolved by this action, a written complaint shall be made.

d) For other infractions, the OLG shall send a written complaint to the vendor detailing the problem.

e) A copy of all written complaints and the resolution or status shall be filed with CMS.

44 Ill. Adm. Code 1600.5520 Suspension

The OLG may recommend to CMS that a vendor be suspended from doing business with the State, with one or more agencies, or for specific types of supplies or services. Suspensions will be governed by 1 Ill. Adm. Code 1.5510 through 1.5550.

44 Ill. Adm. Code 1600.5530 Resolution of Contract Controversies

a) Authority to Resolve Controversies

The Procurement Officer shall have authority to resolve controversies.

b) Authority of the OLG

The OLG has the authority to accept delivery of supplies or services in accordance with contract requirements as satisfactory adjustment of a complaint.

c) Substitution of Terms/Price Reduction

If the vendor proposes to make an adjustment by:

substituting an alternative specification, or
reducing the contract price by a certain amount to compensate for some failure to provide full performance under the contract,

such proposal must be referred to and approved by the Procurement Officer.

d) Cancellation for Breach of Contract

In any of the following cases the Procurement Officer shall have the right to terminate or rescind any contract entered into under this Part:

The successful bidder fails to furnish a satisfactory performance bond within the time specified.
The vendor fails to make delivery at the place or within the time specified in the contract or as ordered by the OLG.
Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor. If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies or services promptly.
The vendor is guilty of misrepresentation (for example, misbranding of food or drugs) in connection with another contract for the sale of supplies or services to the OLG such that the vendor cannot reasonably be depended upon to fulfill his obligations as a responsible vendor under any of his contracts with the OLG.
The vendor should be adjudged bankrupt; enter into receivership or make a general assignment for the benefit of creditors due to insolvency; disregard laws, rules, or instructions of the Procurement Officer; or act in violation of any provision of the contract; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.
Any other breach of contract or other unlawful act by the vendor.

e) Cancellation for Fraud, Collusion, Illegality, Etc.

The OLG may cancel any contract it established if there is sufficient evidence to show that:

The contract was obtained by fraud, collusion, conspiracy, or other unlawful means; or
The contract conflicts with any statutory provision of the State of Illinois or of the United States.

f) Withholding Money to Compensate State for Damages

If a contract is terminated or rescinded under this Section, the OLG may deduct from whatever is owed the vendor on that or any other contract an amount sufficient to compensate the State of Illinois for any damages suffered by it because of the vendor's breach of contract or other unlawful act on the vendor's part on which the cancellation is based.

g) Damages

The damages for which the OLG may be compensated as provided in this Section or by a suit on the vendor's performance bond or by other legal remedy shall include, but are not limited to, the following:

the additional cost of supplies or services bought elsewhere;
cost of repeating the procurement procedure;
any expenses incurred because of delay in receipt of supplies or services; and
any other damages caused by the vendor's breach of contract or unlawful act.

44 Ill. Adm. Code 1600.5540 Violation of Statute or Rule

a) Determination that Solicitation or Award Violates Law

b) Determination that Contract Violates the Code or this Part

Contracts based on awards or solicitations that were in violation of law shall be terminated at no cost to the OLG unless statute or rule allows the OLG to modify, ratify or take other corrective action.

c) Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the OLG shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract.

44 Ill. Adm. Code 1600.5550 Protests

a) Protest Resolution by the Procurement Officer

b) Complaint to Procurement Officer

Complainants should seek resolution of their complaints initially with the office that issued the solicitation. Such complaints may be made verbally or in writing.

c) Filing of Protest

Protests shall be made in writing to the Procurement Officer, if applicable, and shall be filed within 7 calendar days after the protester knows or should have known of the facts giving rise to the protest. A protest is considered filed when physically received by the Procurement Officer. Protests filed after the 7 calendar day period shall not be considered. In regard to a protest regarding specifications, the protest must be received within 7 calendar days after the date the solicitation was issued, and in any event must be received by the OLG at the designated address before the date for opening of bids or proposals.
To expedite handling of protests, the envelope should be labeled "Protest". The written protest shall include as a minimum the following:

A) the name and address of the protester;

B) appropriate identification of the procurement and, if a contract has been awarded, its number;

C) a statement of reasons for the protest; and

D) supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated.

d) Requested Information; Time for Filing

Any additional information requested by the OLG shall be submitted within the time periods established by the requesting source in order to expedite consideration of the protest. Failure of the protesting party to comply expeditiously with a request for information by the Procurement Officer may result in resolution of the protest without consideration of that information.

e) Stay of Procurements During Protest

When a protest has been timely filed and before an award has been made, the Procurement Officer shall make no award of the contract until the protest has been resolved. If timely received but after award, the award shall be revoked without penalty and no award made until the protest has been resolved. In either case the Procurement Officer may make the award or reinstate the award upon a determination that the needs of the OLG require an immediate award and performance under the contract.

f) Decision by the Procurement Officer

g) Effect of Judicial or Administrative Proceedings

44 Ill. Adm. Code 1600.6500 General

In an effort to make the procurement process more efficient, OLG and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to utilize each others' procurement contracts. This authority is governed by this Subpart and the Governmental Joint Purchasing Act [30 ILCS 525]. Only the CPO may enter into contracts under the Act when the OLG is a party to the contract.

44 Ill. Adm. Code 1600.6510 No Agency Relationship

44 Ill. Adm. Code 1600.6520 Obligations of Participating Governmental Units

If governmental units determine to use contracts established by the OLG or by CMS on behalf of the OLG, they must:

a) provide to the CPO a copy of the ordinance or resolution passed by the governing body of the governmental unit giving authority to make purchases from contracts issued by the State of Illinois;

b) make all purchases under the State contracts for public use only and specifically prohibit personal use or consumption by any individual, public employee or official;

c) make payment to the vendor within 30 days after receipt of supplies or services;

e) inspect all items immediately for compliance with the contract specifications and report to the CPO any failure of suppliers to comply with contract requirements; and

f) attempt to resolve disputes with the vendor before involving the CPO.

44 Ill. Adm. Code 1600.7000 Severability

44 Ill. Adm. Code 1600.7010 Government Furnished Property

If the OLG provides any property to the vendor in furtherance of the contract, such property shall remain the property of the State but may be consumed by the vendor if necessary to complete the contract. Vendor will issue a receipt for the property and will be responsible for its safekeeping and for return of unused property to the State.

44 Ill. Adm. Code 1600.7015 Inspections

a) Inspection of Plant or Site

The OLG may enter, or authorize CMS to enter, a vendor's or subcontractor's plant or place of business to:

inspect supplies or services for acceptance by the State pursuant to the terms of a contract;
audit the books and records of any vendor or subcontractor pursuant to Section 1600.7020 (Records and Audits) of this Part;
investigate an action to debar or suspend a person from consideration for award of contracts pursuant to the Code;
determine whether the standards of responsibility have been met or are capable of being met;
determine if the contract is being performed in accordance with its terms; and
accomplish any other purpose permitted by law.

b) Inspection and Testing of Supplies and Services

Solicitation and Contractual Provisions. Contracts of the OLG may provide for the inspection of supplies and services at the vendor's or subcontractor's facility and performance tests to determine whether the supplies or services conform to solicitation requirements, or, after award, to contract requirements, and are therefore acceptable. Such inspections and tests shall be conducted in accordance with the terms of the solicitation and contract and may be conducted by CMS on behalf of the OLG.
Procedures for Trial Use and Testing. The Procurement Officers may establish operational procedures, or may rely on such procedures established by CMS, governing the testing and trial use of equipment, material, and other supplies by the OLG, and the application of resulting information and data to specifications or procurements.

c) Conduct of Inspections

Inspectors. Inspections or tests shall be performed so as not to unduly delay the work of the vendor or subcontractor. No inspector other than the Procurement Officer may change any provision of the specifications or the contract without written authorization of the Procurement Officer. The presence or absence of an inspector shall not relieve the vendor or subcontractor from any requirements of the contract.
Location. When an inspection is made in the plant or place of business of a vendor or subcontractor, such vendor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.
Time. Inspection or testing of supplies and services performed at the plant or place of business of any vendor or subcontractor shall be performed at reasonable times.

d) Inspection of Construction Projects

On-site inspection of construction shall be performed in accordance with the terms of the contract.

44 Ill. Adm. Code 1600.7020 Records and Audits

a) Retention of Books and Records

Books and records that relate to performance of a contract, including subcontracts, and that support amounts charged to the OLG, shall be maintained:

by a vendor, for three years from the date of final payment under the prime contract;
by a subcontractor, for at least three years from the date of final payment under the subcontract; and
by a vendor and subcontractor for such longer period of time as is necessary to complete ongoing or announced audits.

b) Contract Audit

Types of Contracts Audited. The type of contract under which books and records should be audited is that in which price is based on costs or is subject to adjustment based on costs, or that in which auditing would be appropriate to assure satisfactory performance, such as a time and materials contract.
Situations in which an audit may be warranted include, but are not limited to, when a question arises in connection with:

A) the financial condition, integrity, and reliability of the vendor or subcontractor;

B) any prior audit experience;

C) the adequacy of the vendor's or subcontractor's accounting system;

D) the number or nature of invoices or reimbursement vouchers submitted by the vendor or subcontractor for payment;

E) the use of federal assistance funds;

F) the fluctuation of market prices affecting the contract; or

G) any other situation in which the Procurement Officer finds that such an audit is necessary for the protection of the State's best interest.

44 Ill. Adm. Code 1600.7025 Written Determinations

a) Preparation and Execution

b) Content

Each written determination shall set out sufficient facts, circumstances, and reasoning as will substantiate the specific determination that is made.

c) Obtaining Supporting Information

d) Forms the CPO is authorized to prescribe methods and operational procedures to be used in preparing written determinations.

e) Retention

44 Ill. Adm. Code 1600.7030 No Waiver of Sovereign Immunity

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.

Chapter XXV Secretary of State

Part 2000 Secretary of State Standard Procurement

44 Ill. Adm. Code 2000.01 Title

This Part may be cited as the Secretary of State's Procurement Rules.

44 Ill. Adm. Code 2000.05 Policy

All procurements for the Office of the Secretary of State (SOS) shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with statute, this Part and other applicable rules.

44 Ill. Adm. Code 2000.08 Illinois Procurement Code

Articles 1, 15, 20, 25, 30, 33, 35, 40, 43, 45, 50 and 53 of the Illinois Procurement Code [30 ILCS 500/Arts. 1, 15, 20, 25, 30, 33, 35, 40, 43, 45, 50 and 53] (the Code) will be referenced in this Part. The Secretary of State shall procure its needs in a manner substantially in accordance with the requirements of the Code and shall promulgate rules no less restrictive than the requirements of the Code. [30 ILCS 500/1-30(a)] For purposes of this Part, any reference in the Code or this Part to the Chief Procurement Officer (CPO) means the employee designated by the Secretary of State to serve in that capacity. The Secretary of State may appoint one or more State Purchasing Officers (SPOs).

History

Source: Amended at 35 Ill. Reg. 4629, effective March 3, 2011

44 Ill. Adm. Code 2000.10 Application

a) The Code and this Part apply to those procurements for which the vendors were first solicited on or after July 1, 1998.

c) A solicitation occurs on or before June 30, 1998, as follows:

When advertising was required in the Official State Newspaper, the first advertisement must run no later than June 30, 1998.
When advertising was not required:

A) if the procurement was advertised, even though advertising was not required, the first advertisement must have run no later than June 30, 1998;

B) if the procurement was by direct solicitation by mail, the solicitation must have been postmarked or placed in the control of a private carrier no later than June 30, 1998;

C) if the procurement was by direct solicitation by fax, the fax must show a transmission date no later than June 30, 1998;

In all circumstances, the solicitations must be for the procurement of particular needs. A general discussion to determine if there is any interest on the part of a State agency in the supplies or services of a vendor or vendors, or on the part of a vendor or vendors in providing the supplies or services, is not considered a solicitation.

d) The Code and this Part do not apply to:

contracts between the State and its political subdivisions or other governments, or between State governmental bodies except as specifically provided in this Code. (For purposes of this subsection (d)(1), "governmental bodies" includes the State universities and their governing boards, community colleges and their governing boards and school districts. This provision applies to contracts between governmental entities; it does not allow State agencies to utilize contracts established by other governmental entities.);
grants;
hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual;
collective bargaining contracts;
purchase of real estate; or
contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the chief legal counsel to the Secretary of State shall give his or her prior approval [30 ILCS 500/1-10]. Anticipated litigation is that which a State agency may prosecute or defend before a court or administrative body and actions necessary to prepare for and conduct the effective legal prosecution or defense of litigation, including, but not limited to, contracting for court reporting and contracting for expert witnesses.

44 Ill. Adm. Code 2000.15 Definition of Terms Used in This Part

As used throughout this Part, terms defined in the Illinois Procurement Code shall have the same meaning as in the Code and as further defined in this Section, and each term listed in this Section shall have the meaning set forth in this Section unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in that Section.

"Amendment" – A written unilateral or bilateral modification to a contract term, as permitted by the original contract. These modifications shall alter the performance and completion of the contract, including but not limited to such matters as extra work and increases or decreases in quantities of goods not included within the scope of the original contract.

"Award" – The selection of a vendor for a contract.

"Bid" – The response to an Invitation for Bids.

"Bidder" – Any person other than an individual acting as a sole proprietor who submits a bid.

"Bidder or Offeror Authorized to do Business in Illinois" – A person (other than an individual acting as a sole proprietor) that is a legal entity authorized to do business in Illinois by the SOS Department of Business Services.

"Brand Name Specification" – A specification limited to one or more items by manufacturers' names or catalogue numbers.

"Bulletin" – Any Procurement Bulletin promulgated and produced by a State agency or institution as set forth in the Illinois Procurement Code.

"Change Order" – A change order shall have the same meaning as an "amendment".

"Code" – The Illinois Procurement Code [30 ILCS 500].

"Concession" – The right or a lease to engage in a certain activity for profit on the lessor's premises (e.g., a refreshment or parking concession).

"Contract" – A contract may be in written or oral form. The term contract as used in the Code and this Part does not include: supplies or services the terms governing which are established by tariff of the Illinois Commerce Commission or the Federal Communications Commission, bonds issued by or on behalf of any State agency, or contracts, other than for "concessions", that the State agency signs, but has no financial obligation to the other parties.

"Contractor" or "Vendor" – The terms contractor and vendor are used interchangeably for purposes of the Code and this Part.

"DCMS" – The Department of Central Management Services.

"Items" – Anything that may be procured under this Code.

"Multi-Year Contract" – A multi-year contract is a contract with a performance term of more than 12 months.

"Offeror" – A person who responds to an Invitation for Bids, Request for Proposals or other form of solicitation.

"Procurement Officer" – The Chief Procurement Officer (CPO) or appropriate State Purchasing Officer (SPO) who conducts the particular procurement, or a designee of either.

"Proposal" – The response to a Request for Proposals.

"Renewal" – An extension of an original contract with materially identical terms to the original contract.

"Request for Information" or "RFI" – The process by which a purchasing agency requests information from offerors for all State contracts for leases of real property or capital improvements.

"Reverse Auction" – A source selection technique that allows for purchase of supplies or services through a competitive auction process. A reverse auction allows bidders to electronically submit prices for an Invitation for Bids during a predefined time period and is designed to obtain the lowest cost for supplies and services.

"Solicitation" – An Invitation for Bids, a Request for Proposals or other request to one or more vendors to respond to a procurement need expressed by the State.

"SOS" – The Office of the Secretary of State.

"Specification" – Any description of the physical, functional, or performance characteristics, or of the nature, of a supply or service. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply or service item for delivery. Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout this Part.

"Specification for a Common or General Use Item" – A specification that has been developed and approved for repeated use in procurements.

"State" – The Office of the Secretary of State.

"Subcontract" – A contract between one person and another person who has or is seeking a contract subject to this Code, pursuant to which the subcontractor provides to the contractor some or all of the goods, services, property, remuneration or other form of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency.

"Subcontractor" – A person or entity that enters into a contractual agreement, for an amount greater than the small purchases limits set by Section 20-20 of the Code (or an amount set by rule pursuant to Section 20-20(c) of the Code) or Section 35-35 of the Code or Section 45 of the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535/45], with a contractor who has or is seeking a contract subject to the Code, to provide the contractor some or all of the goods, services, property, remuneration or other form of consideration that are the contractor's contractual obligations.

"Supplies" – All personal property, including but not limited to equipment, materials, printing, and insurance, and the financing of those supplies. [30 ILCS 500/1-15.110]

"Unsolicited Offer" – Any offer other than one submitted in response to a solicitation.

History

Source: Amended at 43 Ill. Reg. 6185, effective May 9, 2019

44 Ill. Adm. Code 2000.25 Property Rights

44 Ill. Adm. Code 2000.525 Rules

a) To the extent practicable, the SOS may avail itself of master, scheduled or open-ended contracts established by DCMS; items available from the Paper and Printing Warehouse; and DCMS contracts for telecommunications equipment, software and services, paper and envelopes, and vehicles and vehicle services. The CPO or SPO may submit purchase requests to DCMS in accordance with rules promulgated by DCMS.

b) The Office of the Secretary of State shall procure its capital needs in a manner substantially in accordance with the requirements of this Part and will promulgate rules specifically for capital construction that are no less restrictive than the requirements of the Code. Until specific Secretary of State rules can be promulgated for this purpose, the Office will conform its capital procurement activities to the requirements of the Procurement Code by following the administrative rules of the Capital Development Board (44 Ill. Adm. Code 910, 950 and 980) and the Department of Central Management Services (44 Ill. Adm. Code 1).

History

Source: Amended at 35 Ill. Reg. 4629, effective March 3, 2011

44 Ill. Adm. Code 2000.1005 Conduct and Oversight of Procurements

a) Chief Procurement Officer. The Secretary of State shall designate a chief procurement officer (CPO) for purposes of the Code and this Part. The CPO may conduct any or all procurements on behalf of the SOS. The CPO must have at least 5 years of experience in State budgeting or procurement activities or be a certified professional public buyer or certified public purchasing officer by the Universal Public Purchasing Certification Council. The CPO must be a resident of the State of Illinois and shall owe a fiduciary duty to the State. The CPO is responsible for signing all written award determination letters, stating the reasoning for any contract award decision. The CPO performs other duties as required by law.

b) State Purchasing Officer (SPO). The Secretary may appoint one or more SPOs to conduct procurement in accordance with the terms of the appointment and this Part. The employee performing the duties of the SPO will be classified as a Merit Compensation employee pursuant to Secretary of State Department of Personnel rules (80 Ill. Adm. Code 410 and 420) and, upon attaining certified status, will have the employment protections afforded that status. SPOs must be certified as a professional public buyer or a public purchasing officer by the Universal Public Purchasing Certification Council within 18 months after appointment. In the absence of an SPO, the CPO may designate a temporary acting SPO. The SPO exercises procurement authority at the direction of the CPO, and the decisions of an SPO are subject to review by the CPO. The SPO may enter into contracts on behalf of the Office of the Secretary of State. The SPO performs other duties as required by law.

c) Procurement Compliance Monitor. The Secretary of State Inspector General appointed pursuant to Section 14 of the Secretary of State Act [15 ILCS 305], or a designee, shall serve as the Procurement Compliance Monitor. If a designee is appointed to serve as the monitor, that designee will be classified as a Merit Compensation employee pursuant to Secretary of State Department of Personnel rules (80 Ill. Adm. Code 410 and 420) and, upon attaining certified status, will have the employment protections afforded that status. It is the duty of the monitor to oversee and review the procurement processes. The monitor communicates directly with the Secretary and:

has the right to review all contracts, attend any procurement meeting, and access reports and files;
issues reports to the CPO regarding outstanding procurement problems;
ensures transparency and compliance with procurement laws;
reports findings of waste to SOS departments. If the department does not correct circumstances causing the waste, the monitor will report to the CPO and the Inspector General; and
performs other duties as required by law.

d) Procurement Policy Board. The Secretary shall appoint a Secretary of State Procurement Policy Board (SOS PPB). The SOS PPB consists of 5 members. In making appointments to the SOS PPB, the Secretary will consider an individual's knowledge and experience in State government procurements and operations. The members shall receive no compensation for serving on the SOS PPB other than reimbursement for expenses reasonably incurred in the performance of their duties. Except as provided in subsection (e), the SOS PPB will:

be authorized to review, comment upon, and recommend rules and practices governing the procurement, management, control and disposal of supplies, services, professional or artistic services, construction, and capital improvements procured by the Office of the Secretary of State;
be authorized to review any proposal, bid or contract, and may issue recommendations regarding procurement matters;
be notified by the CPO if a conflict of interest is identified, discovered, or reasonably suspected to exist. In the event of such notification, the SOS PPB is to recommend action and give its recommendation to the CPO and Secretary. The SOS PPB's recommendation is published in the Bulletin;
report to the Inspector General whenever the PPB has cause to believe there has been a violation of the Procurement Code; and
perform other duties as required by law.

e) Real Estate Review Committee. The Secretary shall appoint a Secretary of State Real Estate Review Committee (RRC), consisting of 4 members plus the Chief of Staff. The 4 appointed members will include professionals with real estate experience. The RRC is authorized to review, comment upon, and recommend rules and practices governing the procurement, leasing, management, control, and disposal of real property by the Secretary of State. Reviews of real property transactions shall consider issues related to: legality; fair market value; verifications of property information, including square footage, property taxes, etc.; accuracy of rent allocation schedules; accuracy of vendor disclosure documents; and possible conflicts of interest.

f) Chief Internal Auditor. The Secretary shall appoint a chief internal auditor. The auditor must have a bachelor's degree, and must be either a certified internal auditor, a certified public accountant with at least 4 years of auditing experience, or an auditor with 5 years of experience. Any chief internal auditor appointed on or after July 1, 2010, shall be appointed for a period of 5 years and may only be removed for cause. The chief internal auditor reports directly to the Secretary. Subject to the approval of the Secretary, and consistent with the Fiscal Control and Internal Auditing Act [30 ILCS 10], the chief internal auditor:

directs the internal audit functions and activities;
prepares audit reports and assesses program goals;
is responsible for the preparation of an annual audit plan for submission to and subject to the approval of the Secretary; and
performs other duties as required by law.

History

Source: Amended at 47 Ill. Reg. 10622, effective July 3, 2023

44 Ill. Adm. Code 2000.1510 Illinois Procurement Bulletin

Notice of any procurement action required by the Code to be publicized in a recognized Procurement Bulletin will be forwarded to the appropriate State agency or institution for inclusion in the appropriate volume of the Bulletin.

History

Source: Amended at 43 Ill. Reg. 6185, effective May 9, 2019

44 Ill. Adm. Code 2000.1560 Supplemental Notice

Publication in the Bulletin may be supplemented by publication elsewhere at the discretion of the SOS.

44 Ill. Adm. Code 2000.1570 Error in Notice

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin.

44 Ill. Adm. Code 2000.1580 Direct Solicitation

In addition to giving notice in the Bulletin, the SOS may directly contact prospective vendors by providing copies of Invitations for Bids, Requests for Proposals, or other procurement information. Direct solicitation may be oral or in writing, but care should be taken to ensure that all vendors solicited in this manner receive the same information as provided to others. No direct solicitation shall be made prior to the date any required notice first appears in the Bulletin.

44 Ill. Adm. Code 2000.2005 General Provisions

a) Late Bids or Proposals, Late Withdrawals and Late Modifications

Definition. Any bid or proposal received after the time and date for receipt, and at other than the specified location, is late. A bid that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered, but the agency shall not be responsible for ensuring such subsequent delivery. Any withdrawal or modification of a bid or proposal received after the time and date set for opening of bids or proposals is late. If received at other than the specified location, the submission is late.
Treatment. No late bid or proposal, late modification, or late withdrawal will be considered unless the Procurement Officer, and not a designee, determines it would have been timely but for the action or inaction of State personnel directly serving the procurement activity (e.g., providing the wrong address).
Records. Records shall be made and, in accordance with the State Records Act [5 ILCS 160], kept for each late bid or proposal, late modification, or late withdrawal.
Other Submissions. Any other submission that has a time or date deadline shall be treated in the same manner as a late bid.

b) Extension of Time

The Procurement Officer may, prior to the date or time for submitting or modifying a bid or proposal, extend the date or time for the convenience of the State.
After opening bids or proposals, the Procurement Officer may request bidders or offerors who submitted timely bids or proposals to extend the time during which the State may accept the bids or proposals, provided that, with regard to bids, no other change is permitted. This extension does not provide an opportunity for others to submit bids or proposals.

c) Electronic and Facsimile Submissions

The Invitation for Bids (IFB) or Request for Proposals (RFP) may state that electronic and facsimile machine submissions will be considered if they are received at the designated office by the time and date set for receipt. Any required attachments will be submitted as stated in the IFB or RFP.
Electronic submissions authorized by specific language in the IFB or RFP will be opened in accordance with electronic security measures in effect at the SOS at the time of opening. Unless the electronic submission procedures provide for a secure receipt, vendor assumes risk of premature disclosure due to submission in unsealed form.
Fax submissions authorized by specific language in the IFB or RFP will be placed in a sealed container upon receipt and opened as other submissions. Vendor assumes risk of premature disclosure due to submission in unsealed form.

d) Intent to Submit

e) Only One Bid or Proposal Received

new bids or offers may be solicited, including under sole source (Section 2000.2025) or emergency (Section 2000.2030) procedures; or
the procurement may be canceled.

f) Alternate or Multiple Bids or Proposals

Alternate bids or proposals may be accepted if:

A) permitted by the solicitation and in accordance with instructions in the solicitation; or

B) only one vendor responded, in which case the alternate submission may be evaluated and treated in accordance with Section 2000.2025 (Sole Economically Feasible Source Procurement); or

C) the low bidder, who has met all requirements of the solicitation, has provided a lower cost alternative that meets all of the material requirements of the specifications.

Multiple bids or proposals may be accepted if:

A) permitted by the solicitation and submitted in accordance with instructions in the solicitation; or

B) only one vendor responded, then, one or more of the submissions may be evaluated, provided that, in the case of bids, only the lowest cost bid meeting specifications may be considered.

If a vendor clearly indicates a primary submission among alternate or multiple bids or proposals, then that primary submission shall be considered for award as though it were the only bid or proposal submitted by the vendor.

g) Multiple Items

h) "All or None" Bids or Proposals

All or none bids or proposals may be accepted if the evaluation shows an all or none award to be the lowest cost or best value of those submitted.

i) Conditioning Bids or Proposals Upon Other Awards

Any bid or proposal that is conditioned upon receiving award of the particular contract being solicited and one or more other State contracts shall:

be rejected unless the vendor removes the condition; or
be evaluated and award made to that vendor if the vendor is also independently evaluated as the winner of the other IFBs or RFPs provided the agency need not delay procurement actions to accommodate the vendor's all or none condition.

j) Unsolicited Offers

Processing of Unsolicited Offers. The Procurement Officer may consider unsolicited offers and shall have final authority with respect to evaluation, acceptance and rejection of such unsolicited offer.
Conditions for Consideration. An unsolicited offer must be in writing and must be sufficiently detailed to allow a judgment to be made concerning the potential utility of the offer to the State.
Award. An award may not be made based on an unsolicited offer in place of the notice and competition requirements of the Code and this Part except if that unsolicited offer meets the requirements for a small (Section 2000.2020), sole source (Section 2000.2025), or emergency (Section 2000.2030) procurement.

k) Clarification of Bids and Proposals

The Procurement Officer may request that a vendor clarify its bid or proposal as a part of the evaluation process. A vendor shall not be allowed to materially change its bid or proposal in response to a request for clarification. A clarification is not an opportunity to make changes or for submission of best and finals as authorized elsewhere in this Part.

l) Extension of Time on Indefinite Quantity Contracts

m) Increase in Quantity on Definite Quantity Contracts

The quantity that may be ordered from a definite quantity contract without additional notice and competition may be increased by up to 20% provided the Procurement Officer determines that separate bidding for the additional quantity is not likely to achieve lower pricing. A particular procurement may specify a different percentage.
The quantity may be increased by any percentage provided the dollar value of the increase does not exceed the applicable small purchase (Section 2000.2020) threshold.

n) Subsequent Purchase Request

If, within 30 days after making an award to a particular vendor pursuant to a competitive sealed bid on behalf of the SOS, the SPO receives a purchase request for the same item and for the same or lesser quantity, the SPO may contract with that vendor on the same terms and conditions, including price, without additional notice and competition, if such contract is acceptable to the vendor.

o) Assignment, Novation or Change of Name

Assignment. No State contract is transferable, or otherwise assignable, without the written consent of the Procurement Officer, provided, however, that a vendor may assign money receivable under a contract after due notice to the State. Assignment may require the execution of a contract with the assignee and in such cases the assignee must meet all requirements for contracting with the State.
Recognition of a Successor in Interest; Novation. When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee agree that:

A) the transferee assumes all of the transferor's obligations;

B) the transferee meets all requirements for contracting with the State;

C) the transferor waives all rights under the contract as against the State; and

D) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required by the State, furnish a satisfactory performance bond.

Change of Name. A vendor may submit to the Procurement Officer a written request to change the name in which it holds a contract with the State. The name change shall not alter any of the terms and conditions of the contract or the obligations of the vendor.
Reports. All change of name or novation agreements under this subsection (o) shall be reported to the CPO of DCMS within 30 days after the date the agreement becomes effective so that the bid list may be updated.

p) Contracting for Installment Purchase Payments, Including Interest

q) Use of Source Selection Method that is Not Required

If SOS uses a method of source selection that it is not, by law, required to use (e.g., use of a competitive sealed bid for a small purchase), the SOS is not bound to strict compliance with the Code and rules governing the method of source selection used.

r) Vendor Signature

A bid or proposal submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the Procurement Officer within the time specified by that officer.

s) Stringing

Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited.

t) Confidential Data

u) Documentation of Procurement Actions

Each SPO shall maintain in the procurement or associated contract file all substantive documents and records of communications that pertain to the procurement and any resulting contract. This shall include, as applicable, but is not limited to:

Procurement Business Case, signed by the CPO or SPO, that establishes the reason for the contract decision or other form of decision memo showing CPO or SPO approvals to proceed with the contract award;
Bulletin postings;
Solicitation document (e.g., IFB) and all amendments, clarifications and Best & Final requests;
Vendors' responses, including clarifications and responses to Best & Final requests;
Evaluation material (e.g., scoring guidelines and forms; completed score sheets for individual evaluators, including notes; evaluation committee's combined score sheets; evaluation committee's recommendation; and management's decision);
Protest and resolution;
Contract and any order, change, amendments, renewal or extension;
Contractor Performance Reviews;
All information from subsections (u)(1) through (8), less information exempt from disclosure under the Freedom of Information Act [5 ILAC 140], shall be prepared and available for inspection and copying, with information from subsections (u)(1) through (5) available on the date any award is posted to the Bulletin.

History

Source: Amended at 43 Ill. Reg. 6185, effective May 9, 2019

44 Ill. Adm. Code 2000.2010 Competitive Sealed Bidding

a) Application

b) The Invitation for Bids

Use. The Invitation for Bids is used to initiate a competitive sealed bid procurement.
Content. The Invitation for Bids shall include, at a minimum, the following:

B) the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description; and

C) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

Incorporation by Reference. The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where such documents can be obtained.

c) Bidding Time

d) Bidder Submissions

Bid Form. The Invitation for Bids may include a form or format for submitting bids. If a form or format is specified, vendor shall submit bids as instructed.
Bid Samples and Descriptive Literature

A) Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

e) Public Notice

Publication. Every procurement for supplies and services in excess of the small purchase amount that must be procured using an Invitation for Bids shall be publicized in the Bulletin (see Section 2000.1510).
Public Availability. A copy of the Invitation for Bids shall be made available for public inspection.
Distribution. Invitations for Bids or Notices of the Availability of Invitations for Bids may be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition. Notices of Availability shall, at a minimum, indicate where Invitations for Bids may be obtained; generally describe what is needed; and indicate the due date for bids. Where appropriate, the Procurement Officer may require payment of a fee or a deposit for supplying the Invitation for Bids.

f) Pre-Bid Conference

g) Amendments to Invitations for Bids

Form. Amendments to Invitations for Bids shall be clearly identified and shall reference the portion of the IFB it amends.
Distribution. Amendments shall be made available to all prospective bidders known to have received an Invitation for Bids.
Timeliness. Amendments shall be made available within a reasonable time to allow prospective bidders to consider them in preparing their bids. If the time and date set for receipt of bids will not permit such preparation, the amendment shall extend the response time. If necessary, the response time may be extended by fax or telephone and confirmed in the amendment.

h) Pre-Opening Modification or Withdrawal of Bids

Procedure. Bids may be modified or withdrawn by written notice received in the office designated in the Invitation for Bids prior to the time and date set for bid opening.
Disposition of Bid Security. If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.
Records. All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

i) Receipt, Opening and Recording of Bids

Receipt. Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening. If a bid is opened in error, the file shall so state.
Opening and Recording

A) Bids and modifications shall be opened publicly at the time, date, and place designated in the Invitation for Bids. Opening shall be witnessed by a State employee or any other person present, but the person opening bids shall not serve as witness. The name of each bidder, the bid price, and such other information as is deemed appropriate by the Procurement Officer, shall be recorded and the name of each bidder read aloud or otherwise made available. The name of the witness shall also be recorded at the opening.

B) The winning bid shall be available for public inspection after award, along with the record of each unsuccessful bid.

Confidential Data. The SPO shall examine the bids to determine the validity of any requests for nondisclosure of trade secrets and other proprietary data identified in writing. If the parties do not agree as to the disclosure of data or other information, the bid shall be rejected as nonresponsive.

j) Bid Evaluation and Award

General. The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the Invitation for Bids, except as permitted in the Code and this Part. The Invitation for Bids shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder. No bid shall be evaluated for any requirements or criteria that are not disclosed in the Invitation for Bids.
Responsibility. Responsibility of prospective vendors is covered by Section 2000.2046 (Responsibility).
Responsiveness. A bid must conform in all material respects to the Invitation for Bids.

i) inspection or testing of a product or service prior to award for such characteristics as quality or workmanship;

ii) examination of such elements as appearance, finish, taste, or feel;

iii) other examinations to determine whether it conforms with any other purchase description requirements.

Determination of Lowest Bidder. Following determination of product or service acceptability as set forth in this subsection (j), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the Invitation for Bids. Only objectively measurable criteria that are set forth in the Invitation for Bids shall be applied in determining the lowest bidder. Examples of such criteria include, but are not limited to, transportation cost and ownership or life-cycle cost formulas. Evaluation factors need not be precise predictors of actual future costs, but to the extent possible such evaluation factors shall be reasonable estimates based upon information the State has available concerning future use and shall provide for the equitable treatment of all bids. Pricing for optional supplies or services, or for renewal terms, may be considered, particularly when the pricing for such items or terms is unbalanced when compared to other pricing in the bid.
Price Negotiation. Negotiations are permitted with the low bidder to obtain a lower price for the item bid.

k) Documentation of Award

Following award, a record showing the successful bidder shall be made a part of the procurement file.

l) Award to Other Than Low Bidder

The Procurement Officer, but not a designee, may award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest. The written explanation must be published in the appropriate volume of the Bulletin.
This action may be appropriate when the difference in quality or speed of delivery is so great as compared to the difference in price, and considering the needs of the agency, that a best value award is justified. However, if the difference in price is significant, the Procurement Officer may not utilize this provision.
The explanation must include:

A) a description of the SOS's needs;

B) a determination that the anticipated cost will be fair and reasonable;

C) a listing of all reasonable and responsive bidders; and

D) the name of the bidder selected, pricing, and the reasons for selecting that bidder.

The explanation shall be filed with the Legislative Audit Commission and the SOS PPB.

m) Publicizing Award

The successful bidder shall be notified of award and the notification may be in the form of a letter, purchase order or other clear communication. In procurements over the small purchase limit set in Section 2000.2020 (Small Purchases), notice of award shall be published in the Bulletin.

History

Source: Amended at 43 Ill. Reg. 6185, effective May 9, 2019

44 Ill. Adm. Code 2000.2012 Multi-Step Sealed Bidding

a) Definition. Multi-step sealed bidding is a two-phase process consisting of a technical first phase composed of one or more steps in which bidders submit unpriced technical offers to be evaluated by the State, and a second phase in which those bidders whose technical offers are determined to be acceptable during the first phase have their price bids considered.

to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and
to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, where appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description.

c) Pre-Bid Conference in Multi-Step Sealed Bidding

Prior to the submission or evaluation of unpriced technical offers, a pre-bid conference as contemplated by Section 2000.2010(f) (Pre-Bid Conference) may be conducted by the Procurement Officer.

d) Procedure for Phase One of Multi-Step Sealed Bidding

Form. Multi-step sealed bidding shall be initiated by the issuance of an Invitation for Bids in the form required by Section 2000.2010 (Competitive Sealed Bidding), except as hereinafter provided. In addition to the requirements set forth in Section 2000.2010, the multi-step Invitation for Bids shall state:

A) that unpriced technical offers are requested;

B) whether priced bids are to be submitted at the same time as unpriced technical offers; if they are, such priced bids shall be submitted in a separate sealed envelope;

D) the criteria to be used in the evaluation of the unpriced technical offers;

E) that the Procurement Officer may conduct oral or written discussions of the unpriced technical offers;

Amendments to the Invitation for Bids. After receipt of unpriced technical offers, amendments to the Invitation for Bids shall be distributed only to bidders who submitted unpriced technical offers, and they shall be permitted to submit new unpriced technical offers or to amend those submitted. If, in the opinion of the Procurement Officer, a contemplated amendment will significantly change the nature of the procurement, the Invitation for Bids may be canceled in accordance with Section 2000.2040 (Cancellation of Solicitation; Rejection of Bids or Proposals) of this Part and a new Invitation for Bids issued.
Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers submitted by bidders shall be opened in the presence of at least one witness. Such offers shall not be disclosed to unauthorized persons.
Evaluation of Unpriced Technical Offers. The unpriced technical offers submitted by bidders shall be evaluated solely in accordance with the criteria set forth in the Invitation for Bids. The unpriced technical offers shall be categorized as:

A) acceptable;

B) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

C) unacceptable, in which case the Procurement Officer shall record in writing the basis for finding an offer unacceptable, notify the vendor and make it part of the procurement file.

The Procurement Officer may initiate phase two of the procedure if, in the Procurement Officer's opinion, there are sufficient acceptable unpriced technical offers to assure effective price competition in the second phase without technical discussions. If the Procurement Officer finds discussion of the technical offers is necessary, the Procurement Officer shall commence discussions of the unpriced technical proposals.
Discussion of Unpriced Technical Offers. The Procurement Officer may conduct discussions with any vendor who submits an acceptable or potentially acceptable technical offer. During the course of such discussions, the Procurement Officer shall not disclose any information derived from one unpriced technical offer to any other bidder. Any such bidder may submit supplemental information amending its technical offer at any time until the closing date established by the Procurement Officer. Such submission may be made at the request of the Procurement Officer or upon the bidder's own initiative.
Unacceptable Unpriced Technical Offer. When the Procurement Officer determines a bidder's unpriced technical offer to be unacceptable, such offeror shall not be afforded an additional opportunity to supplement its technical offer.

e) Procedure for Phase Two

Initiation. Upon the completion of phase one, the Procurement Officer shall either:

A) open priced bids submitted in phase one (if priced bids were required to be submitted) from bidders whose unpriced technical offers were found to be acceptable; or

B) if priced bids have not been submitted, invite each acceptable bidder to submit a priced bid.

Conduct. Phase two shall be conducted as any other competitive sealed bid procurement except:

A) no public notice need be given of this invitation to submit priced bids because such notice was previously given;

B) after award, the unpriced technical offer of the successful bidder shall be disclosed as follows: The Procurement Officer shall examine written requests of confidentiality for trade secrets and proprietary data in the technical offer of such bidder to determine the validity of any such requests. If the parties do not agree as to the disclosure of data, the Procurement Officer shall reject the offer. Such technical offer shall be open to public inspection subject to any continuing prohibition on the disclosure of confidential data; and

C) unpriced technical offers of bidders who are not awarded the contract shall not be open to public inspection.

44 Ill. Adm. Code 2000.2015 Competitive Sealed Proposals

a) Competitive Sealed Proposals may be used whenever permitted by the Code and as described in this Part.

b) The Competitive Sealed Proposal method of source selection may be used to procure the following categories (note that the following services, if they are professional or artistic, must be procured pursuant to Section 2000.2035 of this Part):

electronic data processing equipment, software, and services;
telecommunications equipment, software, and services;
consulting services; and
employee benefits and management of those benefits.

c) Competitive Sealed Proposals may be used on a case-by-case basis when it is determined by the Procurement Officer that competitive sealed bidding is either not practicable or advantageous.

"Practicable" Distinguished from "Advantageous." As used in Section 20-15 (Competitive Sealed Proposals) of the Illinois Procurement Code and in this Section, "practicable" denotes what may be accomplished or put into practical application, and "advantageous" connotes a judgmental assessment of what is in the State's best interest. Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest. Before a procurement may be conducted by competitive sealed proposals, the Procurement Officer shall determine in writing that competitive sealed bidding is either not practicable or not advantageous to the State.
General Discussion

A) If competitive sealed bidding is not practicable or is not advantageous, competitive sealed proposals should be used.

i) it permits discussions with competing offerors and changes in their proposals, including price; and

ii) it allows comparative judgmental evaluations to be made when selecting among acceptable proposals for award of the contract.

When Competitive Sealed Bidding Is Not Practicable. Competitive sealed bidding is not practicable unless the nature of the procurement permits award to a low bidder who agrees by its bid to perform without condition or reservation in accordance with the purchase description, delivery or performance schedule, and all other terms and conditions of the Invitation for Bids. Factors to be considered in determining whether competitive sealed bidding is not practicable include:

A) whether the contract needs to be other than a fixed-price type;

B) whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

C) whether offerors may need to be afforded the opportunity to revise their proposals, including price;

E) whether the primary consideration in determining award may not be price.

When Competitive Sealed Bidding Is Not Advantageous. A determination may be made to use competitive sealed proposals if it is determined that it is not advantageous to the State, even though practicable, to use competitive sealed bidding. Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

A) if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State; and

d) Content of the Request for Proposals

The Request for Proposals shall be prepared in accordance with Section 2000.2010 (Competitive Sealed Bidding), provided that it shall also include:

a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted without such discussions; and
a statement of when and how price should be submitted.

e) Receipt and Registration of Proposals

Proposals and modifications shall be opened publicly at the time, date and place designated in the Request for Proposals. Opening shall be witnessed by a State employee or by any other person present, but the person opening proposals shall not serve as witness. A record shall be prepared that shall include the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service item offered. The record of proposals shall be open to public inspection after award of the contract.
Proposals and modifications shall be opened in a manner to avoid disclosing contents to competitors. Only State personnel and contractual agents may review the proposals prior to award.

f) Evaluation of Proposals

Evaluation Factors in the Request for Proposals. The Request for Proposals shall state all of the evaluation factors, including price, and their relative importance.
Evaluation. The evaluation shall be based on the evaluation factors set forth in the Request for Proposals. Factors not specified in the Request for Proposals shall not be considered. Numerical rating systems may be used but are not required.
Classifying Proposals. For the purpose of conducting discussions, proposals may be initially classified as:

A) acceptable;

B) potentially acceptable, that is, reasonably susceptible of being made acceptable; or

C) unacceptable. Offerors whose proposals are unacceptable shall be so notified promptly.

g) Proposal Discussions with Individual Offerors

"Offerors" Defined. For the purposes of Section 20-15(f) (Competitive Sealed Proposals, Discussion with Responsible Offerors and Revisions to Proposals) of the Illinois Procurement Code and of this Section, the term "offerors" includes only those businesses submitting proposals that are acceptable or potentially acceptable. The term shall not include businesses that submitted unacceptable proposals.
Purposes of Discussions. Discussions are held to:

A) promote understanding of the State's requirements and the offerors' proposals; and

B) facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the Request for Proposals.

Conduct of Discussions. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. If during discussions there is a need for any substantial clarification of, or change to, the Request for Proposals, the Request shall be amended to incorporate such clarification or change. Auction techniques (revealing one offeror's price to another) and disclosure of any information from competing proposals are prohibited. Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.
Best and Final Offers. The Procurement Officer may request best and final offers from those offerors deemed acceptable after completion of any discussions. Best and final offers shall be submitted by a specified date and time. The Procurement Officer may conduct additional discussions or change the State's requirements and require another submission of best and final offers (e.g., to clarify the terms of an offer). The scope of the best and final and the number of vendors allowed to participate shall be defined by the Procurement Officer (e.g., depending on the number of potential vendors and the availability of the item being procured). If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediately previous offer will be construed as its best and final offer.

h) Award

i) Publicizing Awards

The successful offeror shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication. When the award exceeds the small purchase limit set in Section 2000.2020 of this Part, notice of award shall be published in the Bulletin.

44 Ill. Adm. Code 2000.2020 Small Purchases

a) Application

Procurements of $100,000 or less for supplies or services, other than professional and artistic, and $100,000 or less for construction may be made using the method of source selection determined by the Procurement Officer to be most appropriate to the circumstances.
Procurements of less than $20,000 for professional and artistic services and that have a non-renewable term of one year or less may be made using the method of source selection determined by the Procurement Officer to be most appropriate to the circumstances.

b) In determining whether a contract is under the limit, the stated value of the supplies or services, plus any optional supplies and services, shall be utilized. Where the term is calculated month-to-month or in a similar fashion, the amount shall be calculated for a twelve month period.

c) If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not to exceed limit applicable to the type of procurement (see subsection (a)).

e) Procurement requirements shall not be artificially divided to avoid using the other source selection methods set forth in Section 20-5 of the Illinois Procurement Code.

f) If there is a repetitive need for small procurements of the same type, the Procurement Officer shall consider issuing a competitive sealed bid or proposal for procurement of those needs.

History

Source: Amended at 45 Ill. Reg. 14500, effective November 4, 2021

44 Ill. Adm. Code 2000.2025 Sole Economically Feasible Source Procurement

a) Application

The provisions of this Part apply to procurement from a sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement is within the limit set in Section 2000.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 2000.2030 (Emergency Procurements) of this Part.

b) Conditions for Use of Sole Source Procurement

Sole source procurement is permissible when a requirement is available from only a single supplier or when only one supplier is deemed economically feasible. A requirement for a particular proprietary item does not justify a sole source procurement if there is more than one potential bidder or offeror authorized to provide that item. The following are examples of circumstances that could necessitate sole source procurement:

the compatibility of equipment, accessories, replacement parts, or service is a paramount consideration;
a sole supplier's items are needed for trial use or testing;
a sole supplier's item is to be procured for commercial resale;
public utility regulated services are to be procured;
the item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;
the procurement of the media for advertising;
the procurement of art or entertainment services; and
changes to existing contracts (see subsection (c)).

c) Changes

Changes to an existing contract that are germane and reasonable in scope and cost in relation to the original contract or program, that are necessary or desirable to complete the contract or program, and that can be best accomplished by the contract holder may be procured under this Section when the Procurement Officer determines that the cost of delay or disruption to the contract or program, and the cost of a new solicitation, clearly indicate that the existing vendor is the sole economically feasible source.
A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 2000.2020 of this Part, or that is an emergency as defined in Section 2000.2030 of this Part, may be made in accordance with procedures governing those Sections and need not comply with these sole source procedures. A change in the length of the contract that does not exceed 30 days and other minor, immaterial changes to the scope or administrative provisions of a contract shall not be considered changes subject to these sole source procedures.

d) Procurement Officer to Determine

The determination as to whether a procurement shall be made as a sole source shall be made by the Procurement Officer. Such determination and the basis therefore shall be in writing. Such officer may specify the application of such determination and the duration of its effectiveness.
Any purchase request submitted to the CPO suggesting that a procurement be restricted to one potential vendor shall be accompanied by an explanation as to why no other vendor will be suitable or acceptable to meet the need.

e) Publication of Sole Source Notice

The Procurement Officer shall publish in the Bulletin notice of intent to contract with that vendor at least 14 days prior to execution of the contract.

If no challenge to this determination is made by a vendor within the 14 day period, the Procurement Officer may execute a contract with that vendor.
If a challenge is received, the Procurement Officer shall consider the information and shall commence a competitive procurement if the Procurement Officer determines that more than one economically feasible source may be available and the sole source designation is, therefore, not appropriate, unless an emergency situation exists.

f) Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, to reach contract terms, including price, and shall maintain a record of each sole source procurement showing:

the vendor's name;
the amount and type of the contract;
what was procured; and
the identification number of the contract file.

g) Prohibition Against Amending a Contract for Professional or Artistic Services Based on Sole Source

The provisions of subsection (c) shall not permit an amendment to a contract for professional or artistic services if:

there is an increase in the amount paid under the contract of more than 5% of the initial award; or
the term of the contract would extend by a period not to exceed the time reasonably needed for a competitive procurement or 2 months, whichever is less.

History

Source: Amended at 35 Ill. Reg. 4629, effective March 3, 2011

44 Ill. Adm. Code 2000.2030 Emergency Procurements

a) Applications

The provisions of this Part apply to every procurement over the small purchase limit set in Section 2000.2020 (Small Purchases) of this Part and that is not a sole source procurement under Section 2000.2025 of this Part made under emergency, including quick purchase, conditions.

b) Definition of Emergency Conditions

Procurements may be made under this Section 2000.2030 in the following circumstances:

Traditional circumstances include but are not limited to:

A) public health or safety, including the health or safety of any particular person, is threatened;

B) immediate repairs are needed to State property to protect against further loss or damage to State property, or to prevent loss or damage to State property;

C) immediate action is needed to prevent or minimize serious disruption in State services;

D) action is needed to ensure the integrity of State records;

F) immediate action is necessary to avoid lapsing or loss of federal or donated funds;

H) immediate action is necessary to protect the collection of substantial State revenue.

After Unsuccessful Competitive Sealed Bidding or Proposals or Request for Proposals. When bids or proposals received pursuant to a competitive sealed bid or competitive sealed proposal method are unreasonable or noncompetitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals, and if emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding, an emergency procurement may be made.
Extension to Allow Competition. Extending an existing contract for such period of time as is needed to conduct a competitive method of source selection where terminating or allowing the contract to terminate would not be advantageous to the State.
Quick Purchase

B) Items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a purchase immediately to take advantage of the availability and price;

C) Availability of rare items, such as books of historical value;

D) The procurement is for entertainment.

c) Scope of Emergency Conditions

Emergency procurements shall be limited to the items, quantity and term necessary to meet the emergency need.
Emergency procurements shall be limited to the time reasonably needed for a competitive procurement, but in no event shall it exceed 90 days unless the CPO determines additional time is needed.
In the event an emergency procurement exceeds 90 days, the contract scope and duration may be extended. The extension shall be limited in items, quantity and days.

d) Authority to Make Emergency Procurements

Authority to make emergency procurements is established in Subpart C. Whenever practical, existing State contracts shall be utilized and, whenever practical, approval by the SPO shall be obtained prior to the procurement. The CPO or SPO shall be responsible for making the filings required in Section 20-30 of the Code.

e) Source Selection Methods

f) Determination and Record of Emergency Procurement

Determination. The Procurement Officer shall make a written determination stating the basis for an emergency procurement and for the selection of the particular vendor. The determinations shall be kept in the contract file of the Procurement Officer.
Record. An affidavit of each emergency procurement shall be filed by the CPO with the SOS PPB and the Auditor General within 10 days after the procurement and shall include the following information:

A) the vendor's name;

B) the amount and type of the contract, provided that, if only an estimate of the amount is available immediately, the record shall be supplemented with the final amount once known;

C) a description of what the vendor will do or provide;

D) the reasons for using the emergency method of source selection.

Notice of the emergency procurement shall be published in the Bulletin in accordance with Subpart D of this Part.

g) Extensions of Emergency

In the event an emergency procurement exceeds 90 days, the emergency procurement may be extended. Prior to the execution of the extension:

the CPO must determine additional time is necessary;
the contract scope and duration must be limited to the emergency;
a public hearing must be held;
the CPO must provide written justification for the emergency contract;
notice of the intent to extend shall be provided to the SOS PPB and published in the Bulletin in accordance with Subpart D of this Part.

History

Source: Amended at 35 Ill. Reg. 4629, effective March 3, 2011

44 Ill. Adm. Code 2000.2035 Competitive Selection Procedures for Professional and Artistic Services

a) Application

The provisions of this Section apply to every procurement of professional and artistic services except those subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and except as provided in Section 2000.2035(e).
"Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 500/1-15.60].

b) Professional and artistic services are further defined as follows:

"Qualified by education" means the individual who would perform the services must have obtained the level of education specified in the Request for Proposals.
"Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the Request for Proposals.
"Qualified by technical ability" means the individual who would perform the services must demonstrate a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the Request for Proposals.
An essential element distinguishing professional and artistic services from other services is confidence, trust, and belief in not only the ability, but the talent, of the individual performing the service. These services are primarily for intellectual or creative skills. Contracts for services primarily involving manual skills or labor are not professional and artistic services contracts. (See Illinois Attorney General Opinion S-256, January 20, 1971.)
If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.
When SOS requires services that meet the requirements of this subsection (b), the competitive selection procedures described in this Section must be followed. Services that do not meet the requirements of this Section must be procured in accordance with other methods of source selection authorized by the Code and this Part.

c) The categories of services enumerated below shall be considered and procured as professional and artistic services. With regard to other services, the SPO may determine whether the factors identified in subsection (b), when applied to particular services to be procured, require such services to be procured as professional and artistic under these competitive selection procedures, or as services that are subject to one of the other methods of source selection authorized by the Code and this Part. The following categories are examples of disciplines that would always be professional and artistic services:

law;
accounting;
medicine;
dentistry; and
clinical psychology.

d) Architect, engineering and land surveying services shall be procured pursuant to the procedures of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535]. Such procurements are not subject to the procedures for other professional services established in the Code or this Part.

e) Conditions for Use of Competitive Selection Procedures

Except as authorized under Section 20-25 (Sole Source Procurement) or Section 20-30 (Emergency Procurements) of the Code, these competitive selection procedures shall be used for all procurements of professional and artistic services of $20,000 or more. Services of less than $20,000 and for a nonrenewable term of one year or less may be procured in accordance with Section 2000.2020 (Small Purchases) of this Part.

f) Prequalification. The CPO shall maintain a list of prequalified professional and artistic vendors in accordance with Section 2000.2045 of this Part. Persons may amend statements of qualifications at any time by filing a new statement. Failure of a professional and artistic vendor to prequalify shall not be cause for rejection of a proposal provided that the responsive offeror supplies with its proposal all information defined by the prequalification process.

g) Public Notice of Competitive Selection Procedures

Notice of the need for professional and artistic services shall be made by the Procurement Officer in the form of a Request for Proposals.
Notice shall be given as provided in Section 2000.2010 (Competitive Sealed Bidding) of this Part.
Notice shall also be distributed to prequalified persons interested in performing the services required by the proposed contract.

h) Request for Proposals

Contents. The Request for Proposals shall be in the form specified by the CPO and shall contain at least the following information: