Public Act 103-0570
HB2878 Re-EnrolledLRB103 30786 RJT 57276 b HB2878 Re-Enrolled LRB103 30786 RJT 57276 b
HB2878 Re-Enrolled LRB103 30786 RJT 57276 b
AN ACT concerning finance.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
ARTICLE 5. FORMER COAL MINE EMPLOYEE PREFERENCE
Section 5-5. The Illinois Procurement Code is amended by
adding Section 45-110 as follows:
(30 ILCS 500/45-110 new)
Sec. 45-110. Former coal mining employees.
(a) In this Section:
"Abandoned mined land reclamation project" means
construction or construction-related professional services
that are used for reclamation projects awarded by the
Department of Natural Resources under the Abandoned Mined
Lands and Water Reclamation Act.
"Former coal mine employee" means an individual previously
employed in any capacity by a coal mining company that engaged
in the extraction of coal deposits or an individual previously
employed in any capacity by a coal-fired power plant.
(b) In awarding contracts for Abandoned Mined Land
Reclamation Projects with a total value of more than $100,000,
preference shall be given to an otherwise qualified bidder
who:
HB2878 Re-Enrolled LRB103 30786 RJT 57276 b
(1) provides proof that at least 2 current employees
of the bidder are former coal mine employees and that all
such declared former coal mine employees in the bid shall
be used in the fulfillment of an awarded Abandoned Mined
Land Reclamation Project; or
(2) commits to employing at least 2 former coal mine
employees hired in fulfillment of the Abandoned Mined Land
Reclamation Project. Under this paragraph (2), the bidder
shall provide proof that at least 2 former coal mine
employees have been hired within 60 days after the start
of construction, and the bidder shall declare that the
former coal mine employees, after being hired, shall be
used in the fulfillment of an awarded Abandoned Mined Land
Reclamation Project.
When the Department of Natural Resources is to award a
contract to the lowest responsible bidder, an otherwise
qualified bidder who will fulfill the contract through the use
of former coal mine employees may be given preference over
other bidders unable to do so, if the bid is not more than 2%
greater than the low bid.
(c) 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.
ARTICLE 10. SINGLE PRIME PROCUREMENT
Section 10-5. The Illinois Procurement Code is amended by
changing Sections 1-15.93, 30-30, 33-5, and 45-105 as follows:
(30 ILCS 500/1-15.93)
(Section scheduled to be repealed on January 1, 2026)
Sec. 1-15.93. Single prime. "Single prime" means the
design-bid-build procurement delivery method for a building
construction project in which the Capital Development Board or
a public institution of higher education, as defined in
Section 1-13 of this Code, is the construction agency
procuring 2 or more subdivisions of work enumerated in
paragraphs (1) through (5) of subsection (a) of Section 30-30
of this Code under a single contract. The provisions of this
Section are inoperative for public institutions of higher
education on and after January 1, 2026. This Section is
repealed on January 1, 2026.
(Source: P.A. 101-369, eff. 12-15-19; 101-645, eff. 6-26-20;
102-671, eff. 11-30-21; 102-1119, eff. 1-23-23.)
(30 ILCS 500/30-30)
Sec. 30-30. Design-bid-build construction.
(a) The provisions of this subsection are operative
through December 31, 2025.
Except as provided in subsection (a-5), for building
construction contracts in excess of $250,000, separate
specifications may be prepared for all equipment, labor, and
materials in connection with the following 5 subdivisions of
the work to be performed:
(1) plumbing;
(2) heating, piping, refrigeration, and automatic
temperature control systems, including the testing and
balancing of those systems;
(3) ventilating and distribution systems for
conditioned air, including the testing and balancing of
those systems;
(4) electric wiring; and
(5) general contract work.
Except as provided in subsection (a-5), the specifications
may be so drawn as to permit separate and independent bidding
upon each of the 5 subdivisions of work. All contracts awarded
for any part thereof may award the 5 subdivisions of work
separately to responsible and reliable persons, firms, or
corporations engaged in these classes of work. The contracts,
at the discretion of the construction 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
construction agency before the bidding as the prime
subdivision of work, provided that all payments will be made
directly to the contractors for the 5 subdivisions of work
upon compliance with the conditions of the contract.
For Beginning on the effective date of this amendatory Act
of the 101st General Assembly and through December 31, 2025,
for single prime projects: (i) 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 5 subdivisions of
work set forth in this Section; (ii) the contract entered into
with the successful bidder shall provide that no identified
subcontractor may be terminated without the written consent of
the Capital Development Board; (iii) the contract shall comply
with the disadvantaged business practices of the Business
Enterprise for Minorities, Women, and Persons with
Disabilities Act and the equal employment practices of Section
2-105 of the Illinois Human Rights Act; and (iv) the Capital
Development Board shall submit an annual report to the General
Assembly and Governor on the bidding, award, and performance
of all single prime projects.
Until December 31, 2023, for For building construction
projects with a total construction cost valued at $5,000,000
or less, the Capital Development Board shall not use the
single prime procurement delivery method for more than 50% of
the total number of projects bid for each fiscal year. Until
December 31, 2023, any Any project with a total construction
cost valued greater than $5,000,000 may be bid using single
prime at the discretion of the Executive Director of the
Capital Development Board.
For contracts entered into on or after January 1, 2024,
the Capital Development Board shall determine whether the
single prime procurement delivery method is to be pursued.
Before electing to use single prime on a project, the Capital
Development Board must make a written determination that must
include a description as to the particular advantages of the
single prime procurement method for that project and an
evaluation of the items in paragraphs (1) through (4). The
chief procurement officer must review the Capital Development
Board's determination and consider the adequacy of information
in paragraphs (1) through (4) to determine whether the Capital
Development Board may proceed with single prime. Approval by
the chief procurement officer shall not be unreasonably
withheld. The following factors must be considered by the
chief procurement officer in any determination:
(1) The benefit that using the single prime
procurement method will have on the Capital Development
Board's ability to increase participation of
minority-owned firms, woman-owned firms, firms owned by
persons with a disability, and veteran-owned firms.
(2) The likelihood that single prime will be in the
best interest of the State by providing a material savings
of time or cost over the multiple prime delivery system.
The best interest of the State justification must show the
specific benefits of using the single prime method,
including documentation of the estimates or scheduling
impacts of any of the following: project complexity and
trade coordination required, length of project,
availability of skilled workforce, geographic area,
project timelines, project budget, ability to secure
minority, women, persons with disabilities and veteran
participation, or other information.
(3) The type and size of the project and its
suitability to the single prime procurement method.
(4) Whether the project will comply with the
underrepresented business and equal employment practices
of the State, as established in the Business Enterprise
for Minorities, Women, and Persons with Disabilities Act,
Section 45-57 of this Code, and Section 2-105 of the
Illinois Human Rights Act.
If the chief procurement officer finds that the Capital
Development Board's written determination is insufficient, the
Capital Development Board shall have the opportunity to cure
its determination. Within 15 days of receiving approval from
the chief procurement officer, the Capital Development Board
shall provide an advisory copy of the written determination to
the Procurement Policy Board and the Commission on Equity and
Inclusion. The Capital Development Board must maintain the
full record of determination for 5 years.
(a-5) Beginning on the effective date of this amendatory
Act of the 102nd General Assembly and through December 31,
2025, for single prime projects in which a public institution
of higher education is a construction agency awarding building
construction contracts in excess of $250,000, separate
specifications may be prepared for all equipment, labor, and
materials in connection with the 5 subdivisions of work
enumerated in subsection (a). Any public institution of higher
education contract awarded for any part thereof may award 2 or
more of the 5 subdivisions of work together or separately to
responsible and reliable persons, firms, or corporations
engaged in these classes of work if: (i) the public
institution of higher education has submitted to the
Procurement Policy Board and the Commission on Equity and
Inclusion a written notice that includes the reasons for using
the single prime method and an explanation of why the use of
that method is in the best interest of the State and arranges
to have the notice posted on the institution's online
procurement webpage and its online procurement bulletin at
least 3 business days following submission to the Procurement
Policy Board and the Commission on Equity and Inclusion; (ii)
the successful low bidder has prequalified with the public
institution of higher education; (iii) the bid of the
successful low bidder identifies the name of the
subcontractor, if any, and the bid proposal costs for each of
the 5 subdivisions of work set forth in subsection (a); (iv)
the contract entered into with the successful bidder provides
that no identified subcontractor may be terminated without the
written consent of the public institution of higher education;
and (v) the successful low bidder has prequalified with the
University of Illinois or with the Capital Development Board.
For building construction projects with a total
construction cost valued at $20,000,000 or less, public
institutions of higher education shall not use the single
prime delivery method for more than 50% of the total number of
projects bid for each fiscal year. Projects with a total
construction cost valued at $20,000,000 or more may be bid
using the single prime delivery method at the discretion of
the public institution of higher education. With respect to
any construction project described in this subsection (a-5),
the public institution of higher education shall: (i) specify
in writing as a public record that the project shall comply
with the Business Enterprise for Minorities, Women, and
Persons with Disabilities Act and the equal employment
practices of Section 2-105 of the Illinois Human Rights Act;
and (ii) report annually to the Governor, General Assembly,
Procurement Policy Board, and Auditor General on the bidding,
award, and performance of all single prime projects. On and
after the effective date of this amendatory Act of the 102nd
General Assembly, the public institution of higher education
may award in each fiscal year single prime contracts with an
aggregate total value of no more than $100,000,000. The Board
of Trustees of the University of Illinois may award in each
fiscal year single prime contracts with an aggregate total
value of not more than $300,000,000.
(b) For public institutions of higher education, the The
provisions of this subsection are operative on and after
January 1, 2026. For building construction contracts in excess
of $250,000, separate specifications shall be prepared for all
equipment, labor, and materials in connection with the
following 5 subdivisions of the work to be performed:
(1) plumbing;
(2) heating, piping, refrigeration, and automatic
temperature control systems, including the testing and
balancing of those systems;
(3) ventilating and distribution systems for
conditioned air, including the testing and balancing of
those systems;
(4) electric wiring; and
(5) general contract work.
The specifications must be so drawn as to permit separate
and independent bidding upon each of the 5 subdivisions of
work. All contracts awarded for any part thereof shall award
the 5 subdivisions of work separately to responsible and
reliable persons, firms, or corporations engaged in these
classes of work. The contracts, at the discretion of the
construction 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 construction agency
before the bidding as the prime subdivision of work, provided
that all payments will be made directly to the contractors for
the 5 subdivisions of work upon compliance with the conditions
of the contract.
(Source: P.A. 101-369, eff. 12-15-19; 101-645, eff. 6-26-20;
102-671, eff. 11-30-21; 102-1119, eff. 1-23-23.)
(30 ILCS 500/33-5)
Sec. 33-5. Definitions. In this Article:
"Construction management services" includes:
(1) 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 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
(2) 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.
"Construction manager" 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.
"Board" means the Capital Development Board or, to the
extent that the services are to be procured by for a public
institution of higher education, the public institution of
higher education.
(Source: P.A. 102-1119, eff. 1-23-23.)
(30 ILCS 500/45-105)
Sec. 45-105. Bid preference for Illinois businesses.
(a) (Blank). For the purposes of this Section:
"Illinois business" means a contractor that: (i) is
headquartered in Illinois and providing, at the time that an
invitation for a bid or notice of contract opportunity is
first advertised, construction or construction-related
professional services for Illinois-based projects; (ii)
conducts meaningful day-to-day business operations at a
facility in Illinois that is the place of employment for the
majority of its regular, full-time workforce; (iii) holds all
appropriate State licenses; and (iv) is subject to applicable
State taxes. "Illinois business" does not include any
subcontractors.
"Illinois-based project" means an individual project of
construction and other construction-related services for a
construction agency that will result in the conduct of
business within the State or the employment of individuals
within the State.
(b) It is hereby declared to be the public policy of the
State of Illinois to promote the economy of Illinois through
the use of Illinois businesses for all State construction
contracts.
(c) Construction agencies procuring construction and
construction-related professional services shall make
reasonable efforts to contract with Illinois businesses.
(d) Beginning in 2022, each construction agency shall
submit a report to the Governor and the General Assembly by
September 1 of each year that identifies the Illinois
businesses procured by the construction agency, the primary
location of the construction project, the percentage of the
construction agency's utilization of Illinois businesses on
the project as a whole, and the actions that the construction
agency has undertaken to increase the use of Illinois
businesses.
(e) In procuring construction and construction-related
professional services for projects with a total value that
exceeds the small purchase maximum established by Section
20-20 of this Code with a total construction cost of more than
$100,000, construction agencies shall provide a bid preference
to a responsive and responsible bidder that is an Illinois
business as defined in this Section. The construction agency
shall allocate to the lowest bid by an Illinois business that
is responsible and responsive any responsible bidder that is
an Illinois business a bid preference of 4% of the contract
base bid. This subsection applies only to projects where a
business that is not an Illinois business submits a bid.
(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.
(g) As used in this Section, "Illinois business" means a
contractor that is operating and headquartered in Illinois and
providing, at the time that an invitation for a bid or notice
of contract opportunity is first advertised, construction or
construction-related professional services, and is operating
as:
(1) a sole proprietor whose primary residence is in
Illinois;
(2) a business incorporated or organized as a domestic
corporation under the Business Corporation Act of 1983;
(3) a business organized as a domestic partnership
under the Uniform Partnership Act of 1997;
(4) a business organized as a domestic limited
partnership under the Uniform Limited Partnership Act of
2001;
(5) a business organized under the Limited Liability
Company Act; or
(6) a business organized under the Professional
Limited Liability Company Act.
"Illinois business" does not include any subcontractors.
(Source: P.A. 102-721, eff. 1-1-23.)
ARTICLE 15. AWARD TO NOT-FOR-PROFIT AGENCY FOR PERSONS WITH
SIGNIFICANT DISABILITIES
Section 15-5. The Governmental Joint Purchasing Act is
amended by changing Section 4.05 as follows:
(30 ILCS 525/4.05)
Sec. 4.05. Other methods of joint purchases.
(a) It may be determined that it is impractical to obtain
competition because either (i) there is only one
economically-feasible source for the item, or (ii) there is a
threat to public health or public safety, or when immediate
expenditure is necessary either to prevent or minimize serious
disruption in critical State services that affect health,
safety, or collection of substantial State revenues, or to
ensure the integrity of State records, or (iii) it is in the
best interest of the State to award a contract to a qualified
not-for-profit agency for persons with significant
disabilities under Section 45-35 of the Illinois Procurement
Code.
(b) When the State of Illinois is a party to the joint
purchase agreement, the applicable chief procurement officer
shall make a determination regarding whether (i) whether there
is only one economically feasible source for the item, or (ii)
whether that there exists a threat to public health or public
safety or that immediate expenditure is necessary to prevent
or minimize serious disruption in critical State services, or
(iii) whether the contract is eligible to be awarded to a
not-for-profit agency for persons with significant
disabilities under Section 45-35 of the Illinois Procurement
Code.
(c) When there is only one economically feasible source
for the item, the chief procurement officer may authorize a
sole economically-feasible source contract. When there exists
a threat to public health or public safety or when immediate
expenditure is necessary to prevent or minimize serious
disruption in critical State services, the chief procurement
officer may authorize an emergency procurement without
competitive sealed bidding or competitive sealed proposals or
prior notice. When an agency requests to award a contract to a
not-for-profit agency for persons with significant
disabilities under Section 45-35 of the Illinois Procurement
Code, the chief procurement officer may authorize the award.
(d) All joint purchases made pursuant to this Section
shall follow the same procedures for sole source contracts in
the Illinois Procurement Code when the chief procurement
officer determines there is only one economically-feasible
source for the item. All joint purchases made pursuant to this
Section shall follow the same procedures for emergency
purchases in the Illinois Procurement Code when the chief
procurement officer determines immediate expenditure is
necessary to prevent or minimize serious disruption in
critical State services that affect health, safety, or
collection of substantial State revenues, or to ensure the
integrity of State records. All joint purchases made under
this Section shall follow the same procedures for
not-for-profit agencies for persons with significant
disabilities under Section 45-35 of the Illinois Procurement
Code when the chief procurement officer determines that it is
in the best interest of the State.
(e) Each chief procurement officer shall submit to the
General Assembly by November 1 of each year a report of
procurements made under this Section.
(Source: P.A. 100-43, eff. 8-9-17.)
ARTICLE 20. VETERANS PREFERENCES
Section 20-5. The Illinois Procurement Code is amended by
changing Section 45-57 as follows:
(30 ILCS 500/45-57)
Sec. 45-57. Veterans.
(a) Set-aside goal. It is the goal of the State to promote
and encourage the continued economic development of small
businesses owned and controlled by qualified 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. Not less
than 3% of the total dollar amount of State contracts, as
defined by the Commission on Equity and Inclusion, shall be
established as a goal to be awarded to SDVOSB and VOSB. That
portion of a contract under which the contractor subcontracts
with a SDVOSB or VOSB may be counted toward the goal of this
subsection. The Commission on Equity and Inclusion shall adopt
rules to implement compliance with this subsection by all
State agencies.
(b) Fiscal year reports. By each November 1, each chief
procurement officer shall report to the Commission on Equity
and Inclusion on all of the following for the immediately
preceding fiscal year, and by each March 1 the Commission on
Equity and Inclusion shall compile and report that information
to the General Assembly:
(1) The total number of VOSB, and the number of
SDVOSB, who submitted bids for contracts under this Code.
(2) The total number of VOSB, and the number of
SDVOSB, who entered into contracts with the State under
this Code and the total value of those contracts.
(b-5) The Commission on Equity and Inclusion shall submit
an annual report to the Governor and the General Assembly that
shall include the following:
(1) a year-by-year comparison of the number of
certifications the State has issued to veteran-owned small
businesses and service-disabled veteran-owned small
businesses;
(2) the obstacles, if any, the Commission on Equity
and Inclusion faces when certifying veteran-owned
businesses and possible rules or changes to rules to
address those issues;
(3) a year-by-year comparison of awarded contracts to
certified veteran-owned small businesses and
service-disabled veteran-owned small businesses; and
(4) any other information that the Commission on
Equity and Inclusion deems necessary to assist
veteran-owned small businesses and service-disabled
veteran-owned small businesses to become certified with
the State.
The Commission on Equity and Inclusion shall conduct a
minimum of 2 outreach events per year to ensure that
veteran-owned small businesses and service-disabled
veteran-owned small businesses know about the procurement
opportunities and certification requirements with the State.
The Commission on Equity and Inclusion may receive
appropriations for outreach.
(c) Yearly review and recommendations. Each year, each
chief procurement officer shall review the progress of all
State agencies under its jurisdiction in meeting the goal
described in subsection (a), with input from statewide
veterans' service organizations and from the business
community, including businesses owned by qualified veterans,
and shall make recommendations to be included in the
Commission on Equity and Inclusion's 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.
(d) Governor's recommendations. To assist the State in
reaching the goal described in subsection (a), the Governor
shall recommend to the General Assembly changes in programs to
assist businesses owned by qualified veterans.
(e) Definitions. As used in this Section:
"Armed forces of the United States" means the United
States Army, Navy, Air Force, Marine Corps, Coast Guard, or
service in active duty as defined under 38 U.S.C. Section 101.
Service in the Merchant Marine that constitutes active duty
under Section 401 of federal Public Act 95-202 shall also be
considered service in the armed forces for purposes of this
Section.
"Certification" means a determination made by the Illinois
Department of Veterans' Affairs and the Commission on Equity
and Inclusion 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 women, minorities, or persons
with disabilities, as those terms are defined in Section 2 of
the Business Enterprise for Minorities, Women, and Persons
with Disabilities Act, may also select and designate whether
that business is to be certified as a "women-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, Women, and Persons with
Disabilities Act.
"Control" means the exclusive, ultimate, majority, or sole
control of the business, including but not limited to capital
investment and all other financial matters, property,
acquisitions, contract negotiations, legal matters,
officer-director-employee selection and comprehensive hiring,
operation responsibilities, cost-control matters, income and
dividend matters, financial transactions, and rights of other
shareholders or joint partners. Control shall be real,
substantial, and continuing, not pro forma. Control shall
include the power to direct or cause the direction of the
management and policies of the business and to make the
day-to-day as well as major decisions in matters of policy,
management, and operations. Control shall be exemplified by
possessing the requisite knowledge and expertise to run the
particular business, and control shall not include simple
majority or absentee ownership.
"Qualified service-disabled 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.
"Qualified service-disabled veteran-owned small business"
or "SDVOSB" means a small business (i) that is at least 51%
owned by one or more qualified service-disabled veterans
living in Illinois or, in the case of a corporation, at least
51% of the stock of which is owned by one or more qualified
service-disabled veterans living in Illinois; (ii) that has
its home office in Illinois; and (iii) for which items (i) and
(ii) are factually verified annually by the Commission on
Equity and Inclusion.
"Qualified veteran-owned small business" or "VOSB" means a
small business (i) that is at least 51% owned by one or more
qualified veterans living in Illinois or, in the case of a
corporation, at least 51% of the stock of which is owned by one
or more qualified veterans living in Illinois; (ii) that has
its home office in Illinois; and (iii) for which items (i) and
(ii) are factually verified annually by the Commission on
Equity and Inclusion.
"Service-connected disability" means a disability incurred
in the line of duty in the active military, naval, or air
service as described in 38 U.S.C. 101(16).
"Small business" means a business that has annual gross
sales of less than $150,000,000 $75,000,000 as evidenced by
the federal income tax return of the business. A firm with
gross sales in excess of this cap may apply to the Commission
on Equity and Inclusion for certification for a particular
contract if the firm can demonstrate that the contract would
have significant impact on SDVOSB or VOSB as suppliers or
subcontractors or in employment of veterans or
service-disabled veterans.
"State agency" has the meaning provided in Section
1-15.100 of this Code.
"Time of hostilities with a foreign country" means any
period of time in the past, present, or future during which a
declaration of war by the United States Congress has been or is
in effect or during which an emergency condition has been or is
in effect that is recognized by the issuance of a Presidential
proclamation or a Presidential executive order and in which
the armed forces expeditionary medal or other campaign service
medals are awarded according to Presidential executive order.
"Veteran" means a person who (i) has been a member of the
armed forces of the United States or, while a citizen of the
United States, was a member of the armed forces of allies of
the United States in time of hostilities with a foreign
country and (ii) has served under one or more of the following
conditions: (a) the veteran served a total of at least 6
months; (b) the veteran served for the duration of hostilities
regardless of the length of the engagement; (c) the veteran
was discharged on the basis of hardship; or (d) the veteran was
released from active duty because of a service connected
disability and was discharged under honorable conditions.
(f) Certification program. The Illinois Department of
Veterans' Affairs and the Commission on Equity and Inclusion
shall work together to devise a certification procedure to
assure that businesses taking advantage of this Section are
legitimately classified as qualified service-disabled
veteran-owned small businesses or qualified veteran-owned
small businesses.
The Commission on Equity and Inclusion shall:
(1) compile and maintain a comprehensive list of
certified veteran-owned small businesses and
service-disabled veteran-owned small businesses;
(2) assist veteran-owned small businesses and
service-disabled veteran-owned small businesses in
complying with the procedures for bidding on State
contracts;
(3) provide training for State agencies regarding the
goal setting process and compliance with veteran-owned
small business and service-disabled veteran-owned small
business goals; and
(4) implement and maintain an electronic portal on the
Commission on Equity and Inclusion's website for the
purpose of completing and submitting veteran-owned small
business and service-disabled veteran-owned small business
certificates.
The Commission on Equity and Inclusion, in consultation
with the Department of Veterans' Affairs, may develop programs
and agreements to encourage cities, counties, towns,
townships, and other certifying entities to adopt uniform
certification procedures and certification recognition
programs.
(f-5) A business shall be certified by the Commission on
Equity and Inclusion as a service-disabled veteran-owned small
business or a veteran-owned small business for purposes of
this Section if the Commission on Equity and Inclusion
determines that the business has been certified as a
service-disabled veteran-owned small business or a
veteran-owned small business by the Vets First Verification
Program of the United States Department of Veterans Affairs,
and the business has provided to the Commission on Equity and
Inclusion the following:
(1) documentation showing certification as a
service-disabled veteran-owned small business or a
veteran-owned small business by the Vets First
Verification Program of the United States Department of
Veterans Affairs;
(2) proof that the business has its home office in
Illinois; and
(3) proof that the qualified veterans or qualified
service-disabled veterans live in the State of Illinois.
The policies of the Commission on Equity and Inclusion
regarding recognition of the Vets First Verification Program
of the United States Department of Veterans Affairs shall be
reviewed annually by the Commission on Equity and Inclusion,
and recognition of service-disabled veteran-owned small
businesses and veteran-owned small businesses certified by the
Vets First Verification Program of the United States
Department of Veterans Affairs may be discontinued by the
Commission on Equity and Inclusion by rule upon a finding that
the certification standards of the Vets First Verification
Program of the United States Department of Veterans Affairs do
not meet the certification requirements established by the
Commission on Equity and Inclusion.
(g) Penalties.
(1) Administrative penalties. The chief procurement
officers appointed pursuant to Section 10-20 shall suspend
any person who commits a violation of Section 17-10.3 or
subsection (d) of Section 33E-6 of the Criminal Code of
2012 relating to this Section from bidding on, or
participating as a contractor, subcontractor, or supplier
in, any State contract or project for a period of not less
than 3 years, and, if the person is certified as a
service-disabled veteran-owned small business or a
veteran-owned small business, then the Commission on
Equity and Inclusion shall revoke the business's
certification for a period of not less than 3 years. An
additional or subsequent violation shall extend the
periods of suspension and revocation for a period of not
less than 5 years. The suspension and revocation shall
apply to the principals of the business and any subsequent
business formed or financed by, or affiliated with, those
principals.
(2) Reports of violations. Each State agency shall
report any alleged violation of Section 17-10.3 or
subsection (d) of Section 33E-6 of the Criminal Code of
2012 relating to this Section to the chief procurement
officers appointed pursuant to Section 10-20. The chief
procurement officers appointed pursuant to Section 10-20
shall subsequently report all such alleged violations to
the Attorney General, who shall determine whether to bring
a civil action against any person for the violation.
(3) List of suspended persons. The chief procurement
officers appointed pursuant to Section 10-20 shall monitor
the status of all reported violations of Section 17-10.3
or subsection (d) of Section 33E-6 of the Criminal Code of
1961 or the Criminal Code of 2012 relating to this Section
and shall maintain and make available to all State
agencies a central listing of all persons that committed
violations resulting in suspension.
(4) Use of suspended persons. During the period of a
person's suspension under paragraph (1) of this
subsection, a State agency shall not enter into any
contract with that person or with any contractor using the
services of that person as a subcontractor.
(5) Duty to check list. Each State agency shall check
the central listing provided by the chief procurement
officers appointed pursuant to Section 10-20 under
paragraph (3) of this subsection to verify that a person
being awarded a contract by that State agency, or to be
used as a subcontractor or supplier on a contract being
awarded by that State agency, is not under suspension
pursuant to paragraph (1) of this subsection.
(h) On and after the effective date of this amendatory Act
of the 102nd General Assembly, all powers, duties, rights, and
responsibilities of the Department of Central Management
Services with respect to the requirements of this Section are
transferred to the Commission on Equity and Inclusion.
All books, records, papers, documents, property (real and
personal), contracts, causes of action, and pending business
pertaining to the powers, duties, rights, and responsibilities
transferred by this amendatory Act from the Department of
Central Management Services to the Commission on Equity and
Inclusion, including, but not limited to, material in
electronic or magnetic format and necessary computer hardware
and software, shall be transferred to the Commission on Equity
and Inclusion.
The powers, duties, rights, and responsibilities
transferred from the Department of Central Management Services
by this amendatory Act shall be vested in and shall be
exercised by the Commission on Equity and Inclusion.
Whenever reports or notices are now required to be made or
given or papers or documents furnished or served by any person
to or upon the Department of Central Management Services in
connection with any of the powers, duties, rights, and
responsibilities transferred by this amendatory Act, the same
shall be made, given, furnished, or served in the same manner
to or upon the Commission on Equity and Inclusion.
This amendatory Act of the 102nd General Assembly does not
affect any act done, ratified, or canceled or any right
occurring or established or any action or proceeding had or
commenced in an administrative, civil, or criminal cause by
the Department of Central Management Services before this
amendatory Act takes effect; such actions or proceedings may
be prosecuted and continued by the Commission on Equity and
Inclusion.
Any rules of the Department of Central Management Services
that relate to its powers, duties, rights, and
responsibilities under this Section and are in full force on
the effective date of this amendatory Act of the 102nd General
Assembly shall become the rules of the Commission on Equity
and Inclusion. This amendatory Act does not affect the
legality of any such rules in the Illinois Administrative
Code. Any proposed rules filed with the Secretary of State by
the Department of Central Management Services that are pending
in the rulemaking process on the effective date of this
amendatory Act and pertain to the powers, duties, rights, and
responsibilities transferred, shall be deemed to have been
filed by the Commission on Equity and Inclusion. As soon as
practicable hereafter, the Commission on Equity and Inclusion
shall revise and clarify the rules transferred to it under
this amendatory Act to reflect the reorganization of powers,
duties, rights, and responsibilities affected by this
amendatory Act, using the procedures for recodification of
rules available under the Illinois Administrative Procedure
Act, except that existing title, part, and section numbering
for the affected rules may be retained. The Commission on
Equity and Inclusion may propose and adopt under the Illinois
Administrative Procedure Act such other rules of the
Department of Central Management Services that will now be
administered by the Commission on Equity and Inclusion.
(Source: P.A. 102-166, eff. 7-26-21; 102-671, eff. 11-30-21.)
ARTICLE 25. SMALL BUSINESS SET-ASIDE REPORTING
Section 25-5. The Illinois Procurement Code is amended by
changing Section 45-45 as follows:
(30 ILCS 500/45-45)
Sec. 45-45. Small businesses.
(a) Set-asides. Each chief procurement officer has
authority to designate as small business set-asides a fair
proportion of construction, supply, and service contracts for
award to small businesses in Illinois. Advertisements for bids
or offers for those contracts shall specify designation as
small business set-asides. In awarding the contracts, only
bids or offers from qualified small businesses shall be
considered.
(b) Small business. "Small business" means a business that
is independently owned and operated and that is not dominant
in its field of operation. The chief procurement officer shall
establish a detailed definition by rule, using in addition to
the foregoing criteria other criteria, including the number of
employees and the dollar volume of business. When computing
the size status of a potential contractor, annual sales and
receipts of the potential contractor and all of its affiliates
shall be included. The maximum number of employees and the
maximum dollar volume that a small business may have under the
rules promulgated by the chief procurement officer may vary
from industry to industry to the extent necessary to reflect
differing characteristics of those industries, subject to the
following limitations:
(1) No wholesale business is a small business if its
annual sales for its most recently completed fiscal year
exceed $13,000,000.
(2) No retail business or business selling services is
a small business if its annual sales and receipts exceed
$8,000,000.
(3) No manufacturing business is a small business if
it employs more than 250 persons.
(4) No construction business is a small business if
its annual sales and receipts exceed $14,000,000.
(c) Fair proportion. For the purpose of subsection (a),
for State agencies of the executive branch, a fair proportion
of construction contracts shall be no less than 25% nor more
than 40% of the annual total contracts for construction.
(d) Withdrawal of designation. A small business set-aside
designation may be withdrawn by the purchasing agency when
deemed in the best interests of the State. Upon withdrawal,
all bids or offers shall be rejected, and the bidders or
offerors shall be notified of the reason for rejection. The
contract shall then be awarded in accordance with this Code
without the designation of small business set-aside. Each
chief procurement officer shall make the annual report
available on his or her official website. Each chief
procurement officer shall also issue a press release in
conjunction with the small business annual report that
includes an executive summary of the annual report and a link
to the annual report on the chief procurement officer's
website.
(e) Small business specialist. Each chief procurement
officer shall designate one or more individuals to serve as
its small business specialist. The small business specialists
shall collectively work together to accomplish the following
duties:
(1) Compiling and maintaining a comprehensive list of
potential small contractors. In this duty, he or she shall
cooperate with the Federal Small Business Administration
in locating potential sources for various products and
services.
(2) Assisting small businesses in complying with the
procedures for bidding on State contracts.
(3) Examining requests from State agencies for the
purchase of property or services to help determine which
invitations to bid are to be designated small business
set-asides.
(4) Making recommendations to the chief procurement
officer for the simplification of specifications and terms
in order to increase the opportunities for small business
participation.
(5) Assisting in investigations by purchasing agencies
to determine the responsibility of bidders or offerors on
small business set-asides.
(f) Small business annual report. Each small business
specialist designated under subsection (e) shall annually
before November 1 report in writing to the General Assembly
concerning the awarding of contracts to small businesses. The
report shall include the total value of awards made in the
preceding fiscal year under the designation of small business
set-aside. The report shall also include the total value of
awards made to businesses owned by minorities, women, and
persons with disabilities, as defined in the Business
Enterprise for Minorities, Women, and Persons with
Disabilities Act, in the preceding fiscal year under the
designation of small business set-aside.
The requirement for reporting to the General Assembly
shall be satisfied by filing copies of the report as required
by Section 3.1 of the General Assembly Organization Act.
(Source: P.A. 100-43, eff. 8-9-17; 100-391, eff. 8-25-17;
100-863, eff. 8-14-18.)
Section 25-10. The Business Enterprise for Minorities,
Women, and Persons with Disabilities Act is amended by
changing Section 8f as follows:
(30 ILCS 575/8f)
(Section scheduled to be repealed on June 30, 2024)
Sec. 8f. Annual report. The Council shall file no later
than March 1 of each year, an annual report that shall detail
the level of achievement toward the goals specified in this
Act over the 3 most recent fiscal years. The annual report
shall include, but need not be limited to the following:
(1) a summary detailing expenditures subject to the
goals, the actual goals specified, and the goals attained
by each State agency and public institution of higher
education;
(2) a summary of the number of contracts awarded and
the average contract amount by each State agency and
public institution of higher education;
(3) an analysis of the level of overall goal
achievement concerning purchases from minority-owned
businesses, women-owned businesses, and businesses owned
by persons with disabilities;
(4) an analysis of the number of businesses owned by
minorities, women, and persons with disabilities that are
certified under the program as well as the number of those
businesses that received State procurement contracts; and
(5) a summary of the number of contracts awarded to
businesses with annual gross sales of less than
$1,000,000; of $1,000,000 or more, but less than
$5,000,000; of $5,000,000 or more, but less than
$10,000,000; and of $10,000,000 or more.
The Council shall make the annual report available on its
official website. The Council shall also issue a press release
in conjunction with the annual report that includes an
executive summary of the annual report and a link to the annual
report on its official website.
(Source: P.A. 99-462, eff. 8-25-15; 100-391, eff. 8-25-17.)
ARTICLE 35. CMS FACILITY LEASES
Section 35-5. The Department of Central Management
Services Law of the Civil Administrative Code of Illinois is
amended by changing Section 405-300 as follows:
(20 ILCS 405/405-300) (was 20 ILCS 405/67.02)
Sec. 405-300. Lease or purchase of facilities; training
programs.
(a) To lease or purchase office and storage space,
buildings, land, and other facilities for all State agencies,
authorities, boards, commissions, departments, institutions,
and bodies politic and all other administrative units or
outgrowths of the executive branch of State government except
the Constitutional officers, the State Board of Education and
the State colleges and universities and their governing
bodies. However, before leasing or purchasing any office or
storage space, buildings, land or other facilities in any
municipality the Department shall survey the existing
State-owned and State-leased property to make a determination
of need.
The leases shall be for a term not to exceed 5 years,
except that the leases may contain a renewal clause subject to
acceptance by the State after that date or an option to
purchase. The purchases shall be made through contracts that
(i) may provide for the title to the property to transfer
immediately to the State or a trustee or nominee for the
benefit of the State, (ii) shall provide for the consideration
to be paid in installments to be made at stated intervals
during a certain term not to exceed 30 years from the date of
the contract, and (iii) may provide for the payment of
interest on the unpaid balance at a rate that does not exceed a
rate determined by adding 3 percentage points to the annual
yield on United States Treasury obligations of comparable
maturity as most recently published in the Wall Street Journal
at the time such contract is signed. The leases and purchase
contracts shall be and shall recite that they are subject to
termination and cancellation in any year for which the General
Assembly fails to make an appropriation to pay the rent or
purchase installments payable under the terms of the lease or
purchase contract. Additionally, the purchase contract shall
specify that title to the office and storage space, buildings,
land, and other facilities being acquired under the contract
shall revert to the Seller in the event of the failure of the
General Assembly to appropriate suitable funds. However, this
limitation on the term of the leases does not apply to leases
to and with the Illinois Building Authority, as provided for
in the Building Authority Act. Leases to and with that
Authority may be entered into for a term not to exceed 30 years
and shall be and shall recite that they are subject to
termination and cancellation in any year for which the General
Assembly fails to make an appropriation to pay the rent
payable under the terms of the lease. These limitations do not
apply if the lease or purchase contract contains a provision
limiting the liability for the payment of the rentals or
installments thereof solely to funds received from the Federal
government.
(b) To lease from an airport authority office, aircraft
hangar, and service buildings constructed upon a public
airport under the Airport Authorities Act for the use and
occupancy of the State Department of Transportation. The lease
may be entered into for a term not to exceed 30 years.
(c) To establish training programs for teaching State
leasing procedures and practices to new employees of the
Department and to keep all employees of the Department
informed about current leasing practices and developments in
the real estate industry.
(d) To enter into an agreement with a municipality or
county to construct, remodel, or convert a structure for the
purposes of its serving as a correctional institution or
facility pursuant to paragraph (c) of Section 3-2-2 of the
Unified Code of Corrections.
(e) To enter into an agreement with a private individual,
trust, partnership, or corporation or a municipality or other
unit of local government, when authorized to do so by the
Department of Corrections, whereby that individual, trust,
partnership, or corporation or municipality or other unit of
local government will construct, remodel, or convert a
structure for the purposes of its serving as a correctional
institution or facility and then lease the structure to the
Department for the use of the Department of Corrections. A
lease entered into pursuant to the authority granted in this
subsection shall be for a term not to exceed 30 years but may
grant to the State the option to purchase the structure
outright.
The leases shall be and shall recite that they are subject
to termination and cancellation in any year for which the
General Assembly fails to make an appropriation to pay the
rent payable under the terms of the lease.
(f) On and after September 17, 1983, the powers granted to
the Department under this Section shall be exercised
exclusively by the Department, and no other State agency may
concurrently exercise any such power unless specifically
authorized otherwise by a later enacted law. This subsection
is not intended to impair any contract existing as of
September 17, 1983.
However, no lease for more than 10,000 square feet of
space shall be executed unless the Director, in consultation
with the Executive Director of the Capital Development Board,
has certified that leasing is in the best interest of the
State, considering programmatic requirements, availability of
vacant State-owned space, the cost-benefits of purchasing or
constructing new space, and other criteria as he or she shall
determine. The Director shall not permit multiple leases for
less than 10,000 square feet to be executed in order to evade
this provision.
(g) To develop and implement, in cooperation with the
Interagency Energy Conservation Committee, a system for
evaluating energy consumption in facilities leased by the
Department, and to develop energy consumption standards for
use in evaluating prospective lease sites.
(h) (1) After June 1, 1998 (the effective date of Public
Act 90-520), the Department shall not enter into an
agreement for the installment purchase or lease purchase
of buildings, land, or facilities unless:
(A) the using agency certifies to the Department
that the agency reasonably expects that the building,
land, or facilities being considered for purchase will
meet a permanent space need;
(B) the building or facilities will be
substantially occupied by State agencies after
purchase (or after acceptance in the case of a build to
suit);
(C) the building or facilities shall be in new or
like new condition and have a remaining economic life
exceeding the term of the contract;
(D) no structural or other major building
component or system has a remaining economic life of
less than 10 years;
(E) the building, land, or facilities:
(i) is free of any identifiable environmental
hazard or
(ii) is subject to a management plan, provided
by the seller and acceptable to the State, to
address the known environmental hazard;
(F) the building, land, or facilities satisfy
applicable accessibility and applicable building
codes; and
(G) the State's cost to lease purchase or
installment purchase the building, land, or facilities
is less than the cost to lease space of comparable
quality, size, and location over the lease purchase or
installment purchase term.
(2) The Department shall establish the methodology for
comparing lease costs to the costs of installment or lease
purchases. The cost comparison shall take into account all
relevant cost factors, including, but not limited to, debt
service, operating and maintenance costs, insurance and
risk costs, real estate taxes, reserves for replacement
and repairs, security costs, and utilities. The
methodology shall also provide:
(A) that the comparison will be made using level
payment plans; and
(B) that a purchase price must not exceed the fair
market value of the buildings, land, or facilities and
that the purchase price must be substantiated by an
appraisal or by a competitive selection process.
(3) If the Department intends to enter into an
installment purchase or lease purchase agreement for
buildings, land, or facilities under circumstances that do
not satisfy the conditions specified by this Section, it
must issue a notice to the Secretary of the Senate and the
Clerk of the House. The notice shall contain (i) specific
details of the State's proposed purchase, including the
amounts, purposes, and financing terms; (ii) a specific
description of how the proposed purchase varies from the
procedures set forth in this Section; and (iii) a specific
justification, signed by the Director, stating why it is
in the State's best interests to proceed with the
purchase. The Department may not proceed with such an
installment purchase or lease purchase agreement if,
within 60 calendar days after delivery of the notice, the
General Assembly, by joint resolution, disapproves the
transaction. Delivery may take place on a day and at an
hour when the Senate and House are not in session so long
as the offices of Secretary and Clerk are open to receive
the notice. In determining the 60-day period within which
the General Assembly must act, the day on which delivery
is made to the Senate and House shall not be counted. If
delivery of the notice to the 2 houses occurs on different
days, the 60-day period shall begin on the day following
the later delivery.
(4) On or before February 15 of each year, the
Department shall submit an annual report to the Director
of the Governor's Office of Management and Budget and the
General Assembly regarding installment purchases or lease
purchases of buildings, land, or facilities that were
entered into during the preceding calendar year. The
report shall include a summary statement of the aggregate
amount of the State's obligations under those purchases;
specific details pertaining to each purchase, including
the amounts, purposes, and financing terms and payment
schedule for each purchase; and any other matter that the
Department deems advisable. The report shall also contain
an analysis of all leases that meet both of the following
criteria: (1) the lease contains a purchase option clause;
and (2) the third full year of the lease has been
completed. That analysis shall include, without
limitation, a recommendation of whether it is in the
State's best interest to exercise the purchase option or
to seek to renew the lease without exercising the clause.
The requirement for reporting shall be satisfied by
filing copies of the report with each of the following:
(1) the Auditor General; (2) the Chairs of the
Appropriations Committees; (3) the General Assembly and
the Commission on Government Forecasting and
Accountability as required by Section 3.1 of the General
Assembly Organizations Act; and (4) the State Government
Report Distribution Center for the General Assembly as is
required under paragraph (t) of Section 7 of the State
Library Act.
(Source: P.A. 99-143, eff. 7-27-15; 100-1109, eff. 1-1-19;
100-1148, eff. 12-10-18.)
ARTICLE 40. DISABILITY-SERVICE ORGANIZATIONS
Section 40-5. The Illinois Procurement Code is amended by
changing Section 45-35 as follows:
(30 ILCS 500/45-35)
Sec. 45-35. Not-for-profit agencies for persons with
significant disabilities.
(a) Qualification. Supplies and services may be procured
without advertising or calling for bids from any qualified
not-for-profit agency for persons with significant
disabilities that:
(1) complies with Illinois laws governing private
not-for-profit organizations;
(2) provides for payment of a wage for contractual
services under this Section that is no less than the
applicable local or Illinois minimum wage, whichever is
higher, for all employees performing work on the contract,
including subcontractors performing work on the contract;
is certified as a work center by the Wage and Hour Division
of the United States Department of Labor or is an
accredited vocational program that provides transition
services to youth between the ages of 14 1/2 and 22 in
accordance with individualized education plans under
Section 14-8.03 of the School Code and that provides
residential services at a child care institution, as
defined under Section 2.06 of the Child Care Act of 1969,
or at a group home, as defined under Section 2.16 of the
Child Care Act of 1969; and
(3) is (A) a disability-serving organization that is
accredited by a nationally-recognized accrediting
organization or licensed by the Department of Human
Services or (B) a Center for Independent Living. certified
as a developmental training provider by the Department of
Human Services.
(b) Participation. To participate, the not-for-profit
agency must have indicated an interest in providing the
supplies and services, must meet the specifications and needs
of the using agency, and must set a fair and reasonable price.
(c) Committee. There is created within the Department of
Central Management Services a committee to facilitate the
purchase of products and services from not-for-profit agencies
that provide employment opportunities to persons with physical
disabilities, intellectual or developmental disabilities,
mental illnesses, or any combination thereof. This committee
is called the State Use Committee. The State Use Committee
shall consist of the Director of the Department of Central
Management Services or his or her designee, the Secretary of
the Department of Human Services or his or her designee, the
Director of Commerce and Economic Opportunity or his or her
designee, one public member representing private business who
is knowledgeable of the employment needs and concerns of
persons with developmental disabilities, one public member
representing private business who is knowledgeable of the
needs and concerns of rehabilitation facilities, one public
member who is knowledgeable of the employment needs and
concerns of persons with developmental disabilities, one
public member who is knowledgeable of the needs and concerns
of rehabilitation facilities, 2 members who have a disability,
2 public members from a statewide association that represents
community-based rehabilitation facilities serving or
supporting individuals with intellectual or developmental
disabilities, and one public member from a disability-focused
statewide advocacy group, all appointed by the Governor. The
public members shall serve 2 year terms, commencing upon
appointment and every 2 years thereafter. A public member may
be reappointed, and vacancies shall be filled by appointment
for the completion of the term. In the event there is a vacancy
on the State Use Committee, the Governor must make an
appointment to fill that vacancy within 30 calendar days after
the notice of vacancy. The members shall serve without
compensation but shall be reimbursed for expenses at a rate
equal to that of State employees on a per diem basis by the
Department of Central Management Services. All members shall
be entitled to vote on issues before the State Use Committee.
The State Use Committee shall have the following powers
and duties:
(1) To request from any State agency information as to
product specification and service requirements in order to
carry out its purpose.
(2) To meet quarterly or more often as necessary to
carry out its purposes.
(3) To request a quarterly report from each
participating qualified not-for-profit agency for persons
with significant disabilities describing the volume of
sales for each product or service sold under this Section.
(4) To prepare a report for the Governor and General
Assembly no later than December 31 of each year. The
requirement for reporting to the General Assembly shall be
satisfied by following the procedures set forth in Section
3.1 of the General Assembly Organization Act.
(5) To prepare a publication that lists all supplies
and services currently available from any qualified
not-for-profit agency for persons with significant
disabilities. This list and any revisions shall be
distributed to all purchasing agencies.
(6) To encourage diversity in supplies and services
provided by qualified not-for-profit agencies for persons
with significant disabilities and discourage unnecessary
duplication or competition among not-for-profit agencies.
(7) To develop guidelines to be followed by qualifying
agencies for participation under the provisions of this
Section. Guidelines shall include a list of national
accrediting organizations which satisfy the requirements
of item (3) of subsection (a) of this Section. The
guidelines shall be developed within 6 months after the
effective date of this Code and made available on a
nondiscriminatory basis to all qualifying agencies. The
new guidelines required under this item (7) by Public Act
100-203 shall be developed within 6 months after August
18, 2017 (the effective date of Public Act 100-203) and
made available on a non-discriminatory basis to all
qualifying not-for-profit agencies.
(8) To review all pricing submitted under the
provisions of this Section and may approve a proposed
agreement for supplies or services where the price
submitted is fair and reasonable. Review of pricing under
this paragraph may include, but is not limited to:
(A) Amounts private businesses would pay for
similar products or services.
(B) Amounts the federal government would pay
contractors for similar products or services.
(C) The amount paid by the State for similar
products or services.
(D) The actual cost of manufacturing the product
or performing a service at a community rehabilitation
program offering employment services on or off
premises to persons with disabilities or mental
illnesses, with adequate consideration given to legal
and moral imperatives to pay workers with disabilities
equitable wages.
(E) The usual, customary, and reasonable costs of
manufacturing, marketing, and distribution.
(9) To, not less than every 3 years, adopt a strategic
plan for increasing the number of products and services
purchased from qualified not-for-profit agencies for
persons with disabilities or mental illnesses, including
the feasibility of developing mandatory set-aside
contracts.
(c-5) Conditions for Use. Each chief procurement officer
shall, in consultation with the State Use Committee, determine
which articles, materials, services, food stuffs, and supplies
that are produced, manufactured, or provided by persons with
significant disabilities in qualified not-for-profit agencies
shall be given preference by purchasing agencies procuring
those items.
(d) (Blank).
(e) Subcontracts. Subcontracts shall be permitted for
agreements authorized under this Section. For the purposes of
this subsection (e), "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.
The State Use Committee shall develop guidelines to be
followed by qualified not-for-profit agencies when seeking and
establishing subcontracts with other persons or not-for-profit
agencies in order to fulfill State contract requirements.
These guidelines shall include the following:
(i) The State Use Committee must approve all
subcontracts and substantive amendments to subcontracts
prior to execution or amendment of the subcontract.
(ii) A qualified not-for-profit agency shall not enter
into a subcontract, or any combination of subcontracts, to
fulfill an entire requirement, contract, or order without
written State Use Committee approval.
(iii) A qualified not-for-profit agency shall make
reasonable efforts to utilize subcontracts with other
not-for-profit agencies for persons with significant
disabilities.
(iv) For any subcontract not currently performed by a
qualified not-for-profit agency, the primary qualified
not-for-profit agency must provide to the State Use
Committee the following: (A) a written explanation as to
why the subcontract is not performed by a qualified
not-for-profit agency, and (B) a written plan to transfer
the subcontract to a qualified not-for-profit agency, as
reasonable.
(Source: P.A. 102-343, eff. 8-13-21; 102-558, eff. 8-20-21.)
ARTICLE 45. REIMAGINING HOTEL FLORENCE ACT
Section 45-1. Short title. This Act may be cited as the
Reimagining Hotel Florence Act. References in this Article to
"this Act" mean this Article.
Section 45-5. Legislative intent. Originally built in
1881, the Hotel Florence is located within the Pullman
Historic District and was placed on the National Register of
Historic Places in 1969 and was designated a National Historic
Landmark on December 30, 1970. To save it from demolition the
Historic Pullman Foundation purchased the hotel in 1975 and
maintained ownership until 1991 when the State of Illinois
took title of the building. The Hotel Florence is continually
closed for renovations and is a semi-closed public space.
The hotel sits next to the Pullman National Historic
Landmark District, which was designated as a National Monument
in 2015 and recently redesignated as Illinois's first National
Park on December 29, 2022 and is operated by the U.S. National
Park Service. This redesignation allows for the National Park
Service to enter into cooperative agreements with outside
parties for interpretive and educational programs at
nonfederal historic properties within the boundaries of the
park and to provide assistance for the preservation of
nonfederal land within the boundaries of the historical park
and at sites in close proximity to it, which may include the
Hotel Florence.
The General Assembly has allocated $21,000,000 in capital
infrastructure funds to aid in the redevelopment of the Hotel
Florence.
The General Assembly finds that allowing for the
Department of Natural Resources to enter into a public-private
partnership that will allow the Hotel Florence to become a
fully reactivated space in a timely manner that is in the
public benefit of the State and the local Pullman community.
Section 45-10. Definitions. In this Act:
"Agreement" means a public-private agreement.
"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, or operation of the Hotel
Florence pursuant to this Act.
"Department" means the Department of Natural Resources.
"Hotel Florence" means real property in City of Chicago
located within the Pullman Historic District that is owned by
the Illinois Department of Natural Resources and was acquired
in 1991, at the address of 11111 S. Forrestville Avenue,
Chicago, Illinois, as well as the adjacent Hotel Florence
Annex building located at 537 East 111th Street, Chicago,
Illinois 60628 and any associated grounds connected to either
property.
"Maintain" or "maintenance" includes ordinary maintenance,
repair, rehabilitation, capital maintenance, maintenance
replacement, and any other categories of maintenance that may
be designated by the Department.
"Offeror" means a person that responds to a request for
proposals under this Act.
"Operate" or "operation" means to do one or more of the
following: maintain, improve, equip, modify, or otherwise
operate.
"Person" means any individual, firm, association, joint
venture, partnership, estate, trust, syndicate, fiduciary,
corporation, or any other legal entity, group, or combination
thereof.
"Public-private agreement" means an agreement or contract
between 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 Act, for the development, financing,
construction, management, or operation of the Hotel Florence
under this Act.
"Revenues" means all revenues, 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
investments; service payments; or other receipts arising out
of or in connection with the financing, development,
construction, management, or operation of the Hotel Florence.
"State" means the State of Illinois.
Section 45-15. Authority to enter public-private
agreement.
(a) Notwithstanding any provision of law to the contrary,
the Department on behalf of the State may, pursuant to a
competitive request for proposals process governed by the
Illinois Procurement Code, rules adopted under that Code, and
this Act, enter into a public-private agreement to develop,
finance, construct, lease, manage, or operate the Hotel
Florence on behalf of the State, pursuant to which the
contractors may receive certain revenues, including management
or user fees in consideration of the payment of moneys to the
State for that right.
(b) The term of a public-private agreement shall be no
less than 25 years and no more than 75 years.
(c) The term of a public-private agreement may be
extended, but only if the extension is specifically authorized
by the General Assembly by law.
Section 45-20. Procurement; prequalification. The
Department may establish a process for prequalification of
offerors. If the Department does create such a process, it
shall:
(1) provide a public notice of the prequalification at
least 30 days prior to the date on which applications are
due;
(2) set forth requirements and evaluation criteria in
order to become prequalified;
(3) determine which offerors that have submitted
prequalification applications, if any, meet the
requirements and evaluation criteria; and
(4) allow only those offerors that have been
prequalified to respond to the request for proposals.
Section 45-25. Request for proposals process to enter into
public-private agreement.
(a) Notwithstanding any provision of law to the contrary,
the Department on behalf of the State shall select a
contractor through a competitive request for proposals process
governed by the Illinois Procurement Code and rules adopted
under that Code and this Act.
(b) The competitive request for proposals process shall,
at a minimum, solicit statements of qualification and
proposals from offerors.
(c) The competitive request for proposals process shall,
at a minimum, take into account the following criteria:
(1) the offeror's plans for the Hotel Florence
project;
(2) the offeror's current and past business practices;
(3) the offeror's poor or inadequate past performance
in developing, financing, constructing, managing, or
operating historic landmark properties or other public
assets;
(4) the offeror's ability to meet and past performance
in meeting or exhausting good faith efforts to meet the
utilization goals for business enterprises established in
the Business Enterprise for Minorities, Women, and Persons
with Disabilities Act;
(5) the offeror's ability to comply with and past
performance in complying with Section 2-105 of the
Illinois Human Rights Act; and
(6) the offeror's plans to comply with the Business
Enterprise for Minorities, Women, and Persons with
Disabilities Act and Section 2-105 of the Illinois Human
Rights Act.
(d) The Department shall not include terms in the request
for proposals that provide an advantage, whether directly or
indirectly, to any contractor presently providing goods,
services, or equipment to the Department.
(e) The Department shall select one or more offerors as
finalists.
(f) After the procedures required in this Section have
been completed, the Department shall make a determination as
to whether the offeror should be designated as the contractor
for the Hotel Florence project and shall 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 Hotel Florence
project.
Section 45-30. Provisions of the public-private agreement.
(a) The public-private agreement shall include all of the
following:
(1) the term of the public-private agreement that is
consistent with Section 45-40;
(2) the powers, duties, responsibilities, obligations,
and functions of the Department and the contractor;
(3) compensation or payments to the Department, if
applicable;
(4) compensation or payments to the contractor, if
applicable;
(5) a provision specifying that the Department:
(A) has ready access to information regarding the
contractor's powers, duties, responsibilities,
obligations, and functions under the public-private
agreement;
(B) has the right to demand and receive
information from the contractor concerning any aspect
of the contractor's powers, duties, responsibilities,
obligations, and functions under the public-private
agreement; and
(C) has the authority to direct or countermand
decisions by the contractor at any time;
(6) a provision imposing an affirmative duty on the
contractor to provide the Department with any information
the contractor reasonably believes the Department would
want to know or would need to know to enable the Department
to exercise its powers, carry out its duties,
responsibilities, and obligations, and perform its
functions under this Act or the public-private agreement
or as otherwise required by law;
(7) the authority of the Department to enter into
contracts with third parties pursuant to Section 45-40;
(8) the authority of the Department to request that
the contractor reimburse the Department for third party
consultants related to the monitoring the project;
(9) a provision governing the contractor's authority
to negotiate and execute subcontracts with third parties;
(10) the authority of the contractor to impose user
fees and the amounts of those fees;
(11) a provision governing the deposit and allocation
of revenues including user fees;
(12) a provision governing rights to real and personal
property of the State, the Department, the contractor, and
other third parties;
(13) grounds for termination of the agreement by the
Department or the contractor and a restatement of the
Department's rights under this Act;
(14) a requirement that the contractor enter into a
project labor agreement;
(15) a provision stating that construction contractors
shall comply with the requirements of Section 30-22 of the
Illinois Procurement Code;
(16) rights and remedies of the Department if the
contractor defaults or otherwise fails to comply with the
terms of the agreement;
(17) procedures for amendment to the agreement; and
(18) all other terms, conditions, and provisions
acceptable to the Department that the Department deems
necessary and proper and in the public interest.
Section 45-35. Time limitations. The Department shall
issue a request for proposals within 6 months after the
effective date of this Act. The Department shall have 6 months
from the date of issuance of the request for proposals to
select a contractor.
Section 45-40. Term of agreement; reversion of property to
the Department.
(a) The Department may terminate the contractor's
authority and duties under the public-private agreement on the
date set forth in the public-private agreement.
(b) Upon termination of the public-private agreement, the
authority and duties of the contractor under this Act cease,
except for those duties and obligations that extend beyond the
termination, as set forth in the public-private agreement, and
all interests in the Hotel Florence shall revert to the
Department.
Section 45-45. Prohibited local action; home rule. A unit
of local government, including a home rule unit, may not take
any action that would have the effect of impairing the
public-private agreement under this Act. This Section is a
denial and limitation of home rule powers and functions under
subsection (h) of Section 6 of Article VII of the Illinois
Constitution.
Section 45-50. Powers liberally construed. The powers
conferred by this Act shall be liberally construed in order to
accomplish their purposes and shall be in addition and
supplemental to the powers conferred by any other law. If any
other law or rule is inconsistent with this Act, this Act is
controlling as to any public-private agreement entered into
under this Act.
Section 45-55. Full and complete authority. This Act
contains full and complete authority for agreements and leases
with private entities to carry out the activities described in
this Act. Except as otherwise required by law, no procedure,
proceedings, publications, notices, consents, approvals,
orders, or acts by the Department or any other State or local
agency or official are required to enter into an agreement or
lease.
ARTICLE 50. DURATION OF CONTRACTS
Section 50-5. The Illinois Procurement Code is amended by
changing Section 20-60 as follows:
(30 ILCS 500/20-60)
Sec. 20-60. Duration of contracts.
(a) Maximum duration. A contract may be entered into for
any period of time deemed to be in the best interests of the
State but not exceeding 10 years inclusive, beginning January
1, 2010, of proposed contract renewals; provided, however, in
connection with the issuance of certificates of participation
or bonds, the governing board of a public institution of
higher education may enter into contracts in excess of 10
years but not to exceed 30 years for the purpose of financing
or refinancing real or personal property. Third parties may
lease State-owned dark fiber networks for any period of time
deemed to be in the best interest of the State, but not
exceeding 20 years. The length of a lease for real property or
capital improvements shall be in accordance with the
provisions of Section 40-25. The length of energy conservation
program contracts or energy savings contracts or leases shall
be in accordance with the provisions of Section 25-45. A
contract for bond or mortgage insurance awarded by the
Illinois Housing Development Authority, however, may be
entered into for any period of time less than or equal to the
maximum period of time that the subject bond or mortgage may
remain outstanding.
(b) Subject to appropriation. All contracts made or
entered into 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 contract.
(c) The chief procurement officer shall file a proposed
extension or renewal of a contract with the Procurement Policy
Board and the Commission on Equity and Inclusion prior to
entering into any extension or renewal if the cost associated
with the extension or renewal exceeds $249,999. The
Procurement Policy Board or the Commission on Equity and
Inclusion may object to the proposed extension or renewal
within 14 calendar days and require a hearing before the Board
or the Commission on Equity and Inclusion prior to entering
into the extension or renewal. If the Procurement Policy Board
or the Commission on Equity and Inclusion does not object
within 14 calendar days or takes affirmative action to
recommend the extension or renewal, the chief procurement
officer may enter into the extension or renewal of a contract.
This subsection does not apply to any emergency procurement,
any procurement under Article 40, or any procurement exempted
by Section 1-10(b) of this Code. If any State agency contract
is paid for in whole or in part with federal-aid funds, grants,
or loans and the provisions of this subsection would result in
the loss of those federal-aid funds, grants, or loans, then
the contract is exempt from the provisions of this subsection
in order to remain eligible for those federal-aid funds,
grants, or loans, and the State agency shall file notice of
this exemption with the Procurement Policy Board or the
Commission on Equity and Inclusion prior to entering into the
proposed extension or renewal. Nothing in this subsection
permits a chief procurement officer to enter into an extension
or renewal in violation of subsection (a). By August 1 each
year, the Procurement Policy Board and the Commission on
Equity and Inclusion shall each file a report with the General
Assembly identifying for the previous fiscal year (i) the
proposed extensions or renewals that were filed and whether
such extensions and renewals were objected to and (ii) the
contracts exempt from this subsection.
(d) Notwithstanding the provisions of subsection (a) of
this Section, the Department of Innovation and Technology may
enter into leases for dark fiber networks for any period of
time deemed to be in the best interests of the State but not
exceeding 20 years inclusive. The Department of Innovation and
Technology may lease dark fiber networks from third parties
only for the primary purpose of providing services (i) to the
offices of Governor, Lieutenant Governor, Attorney General,
Secretary of State, Comptroller, or Treasurer and State
agencies, as defined under Section 5-15 of the Civil
Administrative Code of Illinois or (ii) for anchor
institutions, as defined in Section 7 of the Illinois Century
Network Act. Dark fiber network lease contracts shall be
subject to all other provisions of this Code and any
applicable rules or requirements, including, but not limited
to, publication of lease solicitations, use of standard State
contracting terms and conditions, and approval of vendor
certifications and financial disclosures.
(e) As used in this Section, "dark fiber network" means a
network of fiber optic cables laid but currently unused by a
third party that the third party is leasing for use as network
infrastructure.
(f) No vendor shall be eligible for renewal of a contract
when that vendor has failed to meet the goals agreed to in the
vendor's utilization plan, as defined in Section 2 of the
Business Enterprise for Minorities, Women, and Persons with
Disabilities Act, unless the State agency or public
institution of higher education has determined that the vendor
made good faith efforts toward meeting the contract goals. If
the State agency or public institution of higher education
determines that the vendor made good faith efforts, the agency
or public institution of higher education may issue a waiver
after concurrence by the chief procurement officer, which
shall not be unreasonably withheld or impair a State agency
determination to execute the renewal. The form and content of
the waiver shall be prescribed by each chief procurement
officer, but shall not impair a State agency or public
institution of higher education determination to execute the
renewal. The chief procurement officer shall post the
completed form on his or her official website within 5
business days after receipt from the State agency or public
institution of higher education. The chief procurement officer
shall maintain on his or her official website a database of
waivers granted under this Section with respect to contracts
under his or her jurisdiction. The database shall be updated
periodically and shall be searchable by contractor name and by
contracting State agency or public institution of higher
education.
(Source: P.A. 101-81, eff. 7-12-19; 101-657, Article 5,
Section 5-5, eff. 7-1-21 (See Section 25 of P.A. 102-29 for
effective date of P.A. 101-657, Article 5, Section 5-5);
101-657, Article 40, Section 40-125, eff. 1-1-22; 102-29, eff.
6-25-21; 102-721, eff. 1-1-23.)
ARTICLE 55. PUBLIC EDUCATION PROGRAMMING
Section 55-5. The Illinois Procurement Code is amended by
changing Section 1-10 as follows:
(30 ILCS 500/1-10)
Sec. 1-10. Application.
(a) This Code applies only to procurements for which
bidders, offerors, potential contractors, or contractors were
first solicited on or after July 1, 1998. This Code shall not
be construed to affect or impair any contract, or any
provision of a contract, entered into based on a solicitation
prior to the implementation date of this Code as described in
Article 99, including, but not limited to, any covenant
entered into with respect to any revenue bonds or similar
instruments. All procurements for which contracts are
solicited between the effective date of Articles 50 and 99 and
July 1, 1998 shall be substantially in accordance with this
Code and its intent.
(b) This Code shall apply regardless of the source of the
funds with which the contracts are paid, including federal
assistance moneys. This Code shall not apply to:
(1) Contracts between the State and its political
subdivisions or other governments, or between State
governmental bodies, except as specifically provided in
this Code.
(2) Grants, except for the filing requirements of
Section 20-80.
(3) Purchase of care, except as provided in Section
5-30.6 of the Illinois Public Aid Code and this Section.
(4) Hiring of an individual as an employee and not as
an independent contractor, whether pursuant to an
employment code or policy or by contract directly with
that individual.
(5) Collective bargaining contracts.
(6) 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. 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.
(7) 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 this Code shall give his or
her prior approval when the procuring entity is not one
subject to the jurisdiction of the Governor.
(8) (Blank).
(9) Procurement expenditures by the Illinois
Conservation Foundation when only private funds are used.
(10) (Blank).
(11) 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.
(12) (A) Contracts for legal, financial, and other
professional and artistic services entered into 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 members of the
Illinois Finance Authority and are subject to Sections
5-30, 20-160, 50-13, 50-20, 50-35, and 50-37 of this Code,
as well as the final approval by the members of the
Illinois Finance Authority of the terms of the contract.
(B) Contracts for legal and financial services entered
into by the Illinois Housing Development Authority in
connection with the issuance of bonds in which the State
of Illinois is not obligated. Such contracts shall be
awarded through a competitive process authorized by the
members of the Illinois Housing Development Authority and
are subject to Sections 5-30, 20-160, 50-13, 50-20, 50-35,
and 50-37 of this Code, as well as the final approval by
the members of the Illinois Housing Development Authority
of the terms of the contract.
(13) 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 Chief Procurement Officer as provided in
subsection (d) of Section 5-4-3a of the Unified Code of
Corrections, except for the requirements of Sections
20-60, 20-65, 20-70, and 20-160 and Article 50 of this
Code; however, the Chief Procurement Officer may, in
writing with justification, waive any certification
required under Article 50 of this Code. For any contracts
for services which are currently provided by members of a
collective bargaining agreement, the applicable terms of
the collective bargaining agreement concerning
subcontracting shall be followed.
On and after January 1, 2019, this paragraph (13),
except for this sentence, is inoperative.
(14) Contracts for participation expenditures required
by a domestic or international trade show or exhibition of
an exhibitor, member, or sponsor.
(15) Contracts with a railroad or utility that
requires the State to reimburse the railroad or utilities
for the relocation of utilities for construction or other
public purpose. Contracts included within this paragraph
(15) shall include, but not be limited to, those
associated with: relocations, crossings, installations,
and maintenance. For the purposes of this paragraph (15),
"railroad" means any form of non-highway ground
transportation that runs on rails or electromagnetic
guideways and "utility" means: (1) public utilities as
defined in Section 3-105 of the Public Utilities Act, (2)
telecommunications carriers as defined in Section 13-202
of the Public Utilities Act, (3) electric cooperatives as
defined in Section 3.4 of the Electric Supplier Act, (4)
telephone or telecommunications cooperatives as defined in
Section 13-212 of the Public Utilities Act, (5) rural
water or waste water systems with 10,000 connections or
less, (6) a holder as defined in Section 21-201 of the
Public Utilities Act, and (7) municipalities owning or
operating utility systems consisting of public utilities
as that term is defined in Section 11-117-2 of the
Illinois Municipal Code.
(16) Procurement expenditures necessary for the
Department of Public Health to provide the delivery of
timely newborn screening services in accordance with the
Newborn Metabolic Screening Act.
(17) Procurement expenditures necessary for the
Department of Agriculture, the Department of Financial and
Professional Regulation, the Department of Human Services,
and the Department of Public Health to implement the
Compassionate Use of Medical Cannabis Program and Opioid
Alternative Pilot Program requirements and ensure access
to medical cannabis for patients with debilitating medical
conditions in accordance with the Compassionate Use of
Medical Cannabis Program Act.
(18) This Code does not apply to any 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 if
the applicable agency has made a good faith determination
that it is necessary and appropriate for the expenditure
to fall within this exemption and if the process is
conducted in a manner substantially in accordance with the
requirements of Sections 20-160, 25-60, 30-22, 50-5,
50-10, 50-10.5, 50-12, 50-13, 50-15, 50-20, 50-21, 50-35,
50-36, 50-37, 50-38, and 50-50 of this Code; however, for
Section 50-35, compliance applies only to contracts or
subcontracts over $100,000. Notice of each contract
entered into under this paragraph (18) that is related to
the procurement of goods and services identified in
paragraph (1) through (9) of this subsection shall be
published in the Procurement Bulletin within 14 calendar
days after contract execution. The Chief Procurement
Officer shall prescribe the form and content of the
notice. Each agency shall provide the Chief Procurement
Officer, on a monthly basis, in the form and content
prescribed by the Chief Procurement Officer, a report of
contracts that are related to the procurement of goods and
services identified in this subsection. 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 this Code utilized. A copy of any or all of
these contracts shall be made available to the Chief
Procurement Officer immediately upon request. The Chief
Procurement Officer shall submit a report to the Governor
and General Assembly no later than November 1 of each year
that includes, at a minimum, an annual summary of the
monthly information reported to the Chief Procurement
Officer. This exemption becomes inoperative 5 years after
June 25, 2019 (the effective date of Public Act 101-27).
(19) Acquisition of modifications or adjustments,
limited to assistive technology devices and assistive
technology services, adaptive equipment, repairs, and
replacement parts to provide reasonable accommodations (i)
that enable a qualified applicant with a disability to
complete the job application process and be considered for
the position such qualified applicant desires, (ii) that
modify or adjust the work environment to enable a
qualified current employee with a disability to perform
the essential functions of the position held by that
employee, (iii) to enable a qualified current employee
with a disability to enjoy equal benefits and privileges
of employment as are enjoyed by other similarly situated
employees without disabilities, and (iv) that allow a
customer, client, claimant, or member of the public
seeking State services full use and enjoyment of and
access to its programs, services, or benefits.
For purposes of this paragraph (19):
"Assistive technology devices" means any item, piece
of equipment, or product system, whether acquired
commercially off the shelf, modified, or customized, that
is used to increase, maintain, or improve functional
capabilities of individuals with disabilities.
"Assistive technology services" means any service that
directly assists an individual with a disability in
selection, acquisition, or use of an assistive technology
device.
"Qualified" has the same meaning and use as provided
under the federal Americans with Disabilities Act when
describing an individual with a disability.
(20) Procurement expenditures necessary for the
Illinois Commerce Commission to hire third-party
facilitators pursuant to Sections 16-105.17 and 16-108.18
of the Public Utilities Act or an ombudsman pursuant to
Section 16-107.5 of the Public Utilities Act, a
facilitator pursuant to Section 16-105.17 of the Public
Utilities Act, or a grid auditor pursuant to Section
16-105.10 of the Public Utilities Act.
(21) Procurement expenditures for the purchase,
renewal, and expansion of software, software licenses, or
software maintenance agreements that support the efforts
of the Illinois State Police to enforce, regulate, and
administer the Firearm Owners Identification Card Act, the
Firearm Concealed Carry Act, the Firearms Restraining
Order Act, the Firearm Dealer License Certification Act,
the Law Enforcement Agencies Data System (LEADS), the
Uniform Crime Reporting Act, the Criminal Identification
Act, the Uniform Conviction Information Act, and the Gun
Trafficking Information Act, or establish or maintain
record management systems necessary to conduct human
trafficking investigations or gun trafficking or other
stolen firearm investigations. This paragraph (21) applies
to contracts entered into on or after the effective date
of this amendatory Act of the 102nd General Assembly and
the renewal of contracts that are in effect on the
effective date of this amendatory Act of the 102nd General
Assembly.
(22) Contracts for public education programming,
noncommercial sustaining announcements, public service
announcements, and public awareness and education
messaging with the nonprofit trade associations of the
providers of those services that inform the public on
immediate and ongoing health and safety risks and hazards.
Notwithstanding any other provision of law, for contracts
with an annual value of more than $100,000 entered into on or
after October 1, 2017 under an exemption provided in any
paragraph of this subsection (b), except paragraph (1), (2),
or (5), each State agency shall post to the appropriate
procurement bulletin 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. The chief procurement officer 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
chief procurement officer.
(c) This Code does not apply to the electric power
procurement process provided for under Section 1-75 of the
Illinois Power Agency Act and Section 16-111.5 of the Public
Utilities Act.
(d) Except for Section 20-160 and Article 50 of this Code,
and as expressly required by Section 9.1 of the Illinois
Lottery Law, the provisions of this Code do not apply to the
procurement process provided for under Section 9.1 of the
Illinois Lottery Law.
(e) This Code does not apply to 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 a clean coal SNG brownfield
facility, as defined by Section 1-10 of the Illinois Power
Agency Act, as required in subsection (h-3) of Section 9-220
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.
(f) (Blank).
(g) (Blank).
(h) This Code does not apply to 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.
(i) Each chief procurement officer may access records
necessary to review whether a contract, purchase, or other
expenditure is or is not subject to the provisions of this
Code, unless such records would be subject to attorney-client
privilege.
(j) This Code does not apply to 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.
(k) This Code does not apply to the process to procure
contracts, or contracts entered into, by the State Board of
Elections or the State Electoral Board for hearing officers
appointed pursuant to the Election Code.
(l) This Code does not apply to the processes used by the
Illinois Student Assistance Commission to procure supplies and
services paid for from the private funds of the Illinois
Prepaid Tuition Fund. As used in this subsection (l), "private
funds" means funds derived from deposits paid into the
Illinois Prepaid Tuition Trust Fund and the earnings thereon.
(m) This Code shall apply regardless of the source of
funds with which contracts are paid, including federal
assistance moneys. Except as specifically provided in this
Code, this Code shall not apply to procurement expenditures
necessary for the Department of Public Health to conduct the
Healthy Illinois Survey in accordance with Section 2310-431 of
the Department of Public Health Powers and Duties Law of the
Civil Administrative Code of Illinois.
(Source: P.A. 101-27, eff. 6-25-19; 101-81, eff. 7-12-19;
101-363, eff. 8-9-19; 102-175, eff. 7-29-21; 102-483, eff
1-1-22; 102-558, eff. 8-20-21; 102-600, eff. 8-27-21; 102-662,
eff. 9-15-21; 102-721, eff. 1-1-23; 102-813, eff. 5-13-22;
102-1116, eff. 1-10-23.)
ARTICLE 60. CONTRACTOR DIVERSITY REPORTING
Section 60-5. The Business Corporation Act of 1983 is
amended by adding Section 14.40 as follows:
(805 ILCS 5/14.40 new)
Sec. 14.40. State contractors reporting.
(a) Except as provided in subsection (b), by June 1, 2024,
and each June 1 thereafter, a corporation that has contracts
with this State shall provide to the Commission on Equity and
Inclusion a list of its professional services suppliers by
category, including, but not limited to, legal services,
accounting services, media placement, technology services,
asset management, and consulting services. The list shall
include the percentage of owners and employees in each
category that are women or minority persons. The list required
under this subsection (a) shall provide the required
information for each of the classes of minority persons
identified in Section 2 of the Business Enterprise for
Minorities, Women, and Persons with Disabilities Act.
(b) Corporations that submit annual supplier diversity
reports to the Illinois Commerce Commission in accordance with
Section 8h of the Business Enterprise for Minorities, Women,
and Persons with Disabilities Act are exempt from the
requirements of this Section.
(c) This Section is repealed on July 1, 2028.
ARTICLE 65. REQUESTS FOR WAIVER OF ASPIRATIONAL GOALS
Section 5. The Business Enterprise for Minorities, Women,
and Persons with Disabilities Act is amended by changing
Sections 2 and 7 as follows:
(30 ILCS 575/2)
(Section scheduled to be repealed on June 30, 2024)
Sec. 2. Definitions.
(A) For the purpose of this Act, the following terms shall
have the following definitions:
(1) "Minority person" shall mean a person who is a
citizen or lawful permanent resident of the United States
and who is any of the following:
(a) American Indian or Alaska Native (a person
having origins in any of the original peoples of North
and South America, including Central America, and who
maintains tribal affiliation or community attachment).
(b) Asian (a person having origins in any of the
original peoples of the Far East, Southeast Asia, or
the Indian subcontinent, including, but not limited
to, Cambodia, China, India, Japan, Korea, Malaysia,
Pakistan, the Philippine Islands, Thailand, and
Vietnam).
(c) Black or African American (a person having
origins in any of the black racial groups of Africa).
(d) Hispanic or Latino (a person of Cuban,
Mexican, Puerto Rican, South or Central American, or
other Spanish culture or origin, regardless of race).
(e) Native Hawaiian or Other Pacific Islander (a
person having origins in any of the original peoples
of Hawaii, Guam, Samoa, or other Pacific Islands).
(2) "Woman" shall mean a person who is a citizen or
lawful permanent resident of the United States and who is
of the female gender.
(2.05) "Person with a disability" means a person who
is a citizen or lawful resident of the United States and is
a person qualifying as a person with a disability under
subdivision (2.1) of this subsection (A).
(2.1) "Person with a disability" means a person with a
severe physical or mental disability that:
(a) results from:
amputation,
arthritis,
autism,
blindness,
burn injury,
cancer,
cerebral palsy,
Crohn's disease,
cystic fibrosis,
deafness,
head injury,
heart disease,
hemiplegia,
hemophilia,
respiratory or pulmonary dysfunction,
an intellectual disability,
mental illness,
multiple sclerosis,
muscular dystrophy,
musculoskeletal disorders,
neurological disorders, including stroke and
epilepsy,
paraplegia,
quadriplegia and other spinal cord conditions,
sickle cell anemia,
ulcerative colitis,
specific learning disabilities, or
end stage renal failure disease; and
(b) substantially limits one or more of the
person's major life activities.
Another disability or combination of disabilities may
also be considered as a severe disability for the purposes
of item (a) of this subdivision (2.1) if it is determined
by an evaluation of rehabilitation potential to cause a
comparable degree of substantial functional limitation
similar to the specific list of disabilities listed in
item (a) of this subdivision (2.1).
(3) "Minority-owned business" means a business which
is at least 51% owned by one or more minority persons, or
in the case of a corporation, at least 51% of the stock in
which is owned by one or more minority persons; and the
management and daily business operations of which are
controlled by one or more of the minority individuals who
own it.
(4) "Women-owned business" means a business which is
at least 51% owned by one or more women, or, in the case of
a corporation, at least 51% of the stock in which is owned
by one or more women; and the management and daily
business operations of which are controlled by one or more
of the women who own it.
(4.1) "Business owned by a person with a disability"
means a business that is at least 51% owned by one or more
persons with a disability and the management and daily
business operations of which are controlled by one or more
of the persons with disabilities who own it. A
not-for-profit agency for persons with disabilities that
is exempt from taxation under Section 501 of the Internal
Revenue Code of 1986 is also considered a "business owned
by a person with a disability".
(4.2) "Council" means the Business Enterprise Council
for Minorities, Women, and Persons with Disabilities
created under Section 5 of this Act.
(4.3) "Commission" means, unless the context clearly
indicates otherwise, the Commission on Equity and
Inclusion created under the Commission on Equity and
Inclusion Act.
(4.4) "Certified vendor" means a minority-owned
business, women-owned business, or business owned by a
person with a disability that is certified by the Business
Enterprise Program.
(4.5) "Subcontractor" means a person or entity that
enters into a contractual agreement with a prime vendor to
provide, on behalf of the prime vendor, goods, services,
real property, or remuneration or other monetary
consideration that is the subject of the primary State
contract. "Subcontractor" includes a sublessee under a
State contract.
(4.6) "Prime vendor" means any person or entity having
a contract that is subject to this Act with a State agency
or public institution of higher education.
(5) "State contracts" means all contracts entered into
by the State, any agency or department thereof, or any
public institution of higher education, including
community college districts, regardless of the source of
the funds with which the contracts are paid, which are not
subject to federal reimbursement. "State contracts" does
not include contracts awarded by a retirement system,
pension fund, or investment board subject to Section
1-109.1 of the Illinois Pension Code. This definition
shall control over any existing definition under this Act
or applicable administrative rule.
"State construction contracts" means all State
contracts entered into by a State agency or public
institution of higher education for the repair,
remodeling, renovation or construction of a building or
structure, or for the construction or maintenance of a
highway defined in Article 2 of the Illinois Highway Code.
(6) "State agencies" shall mean 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.
(7) "Public institutions of higher education" means
the University of Illinois, Southern Illinois University,
Chicago State University, Eastern Illinois University,
Governors State University, Illinois State University,
Northeastern Illinois University, Northern Illinois
University, Western Illinois University, the public
community colleges of the State, and any other public
universities, colleges, and community colleges now or
hereafter established or authorized by the General
Assembly.
(8) "Certification" means a determination made by the
Council or by one delegated authority from the Council to
make certifications, or by a State agency with statutory
authority to make such a certification, that a business
entity is a business owned by a minority, woman, or person
with a disability for whatever purpose. A business owned
and controlled by women shall be certified as a
"woman-owned business". A business owned and controlled by
women who are also minorities shall be certified as both a
"women-owned business" and a "minority-owned business".
(9) "Control" means the exclusive or ultimate and 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, operating 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.
(10) "Business" means a business that has annual gross
sales of less than $150,000,000 as evidenced by the
federal income tax return of the business. A certified
vendor firm with gross sales in excess of this cap may
apply to the Council for certification for a particular
contract if the vendor firm can demonstrate that the
contract would have significant impact on businesses owned
by minorities, women, or persons with disabilities as
suppliers or subcontractors or in employment of
minorities, women, or persons with disabilities. Firms
with gross sales in excess of this cap that are granted
certification by the Council shall be granted
certification for the life of the contract, including
available renewals.
(11) "Utilization plan" means an attachment that is
made to a form and additional documentations included in
all bids or proposals and that demonstrates the bidder's
or offeror's efforts to meet the contract-specific
Business Enterprise Program goal. The utilization plan
shall indicate whether the prime vendor intends to meet
the Business Enterprise Program goal through its own
performance, if it is a certified vendor, or through the
use of subcontractors that are certified vendors a
vendor's proposed utilization of vendors certified by the
Business Enterprise Program to meet the targeted goal. The
utilization plan shall demonstrate that the Vendor has
either: (1) met the entire contract goal or (2) requested
a full or partial waiver of the contract goal. If the prime
vendor intends to use a subcontractor that is a certified
vendor to fulfill the contract goal, a participation
agreement executed between the prime vendor and the
certified subcontractor must be included with the
utilization plan and made good faith efforts towards
meeting the goal.
(12) "Business Enterprise Program" means the Business
Enterprise Program of the Commission on Equity and
Inclusion.
(13) "Good faith effort" means actions undertaken by a
vendor to achieve a contract specific Business Enterprise
Program goal that, by scope, intensity, and
appropriateness to the objective, can reasonably be
expected to fulfill the program's requirements.
(B) When a business is owned at least 51% by any
combination of minority persons, women, or persons with
disabilities, even though none of the 3 classes alone holds at
least a 51% interest, the ownership requirement for purposes
of this Act is considered to be met. The certification
category for the business is that of the class holding the
largest ownership interest in the business. If 2 or more
classes have equal ownership interests, the certification
category shall be determined by the business.
(Source: P.A. 101-601, eff. 1-1-20; 101-657, eff. 1-1-22;
102-29, eff. 6-25-21; 102-1119, eff. 1-23-23.)
(30 ILCS 575/7) (from Ch. 127, par. 132.607)
(Section scheduled to be repealed on June 30, 2024)
Sec. 7. Exemptions; waivers; publication of data.
(1) Individual contract exemptions. The Council, at the
written request of the affected agency, public institution of
higher education, or recipient of a grant or loan of State
funds of $250,000 or more complying with Section 45 of the
State Finance Act, may permit an individual contract or
contract package, (related contracts being bid or awarded
simultaneously for the same project or improvements) be made
wholly or partially exempt from State contracting goals for
businesses owned by minorities, women, and persons with
disabilities prior to the advertisement for bids or
solicitation of proposals whenever there has been a
determination, reduced to writing and based on 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 individual contract or
contract package in question. Any such exemptions shall be
given by the Council to the Bureau on Apprenticeship Programs
and Clean Energy Jobs.
(a) Written request for contract exemption. A written
request for an individual contract exemption must include,
but is not limited to, the following:
(i) a list of eligible businesses owned by
minorities, women, and persons with disabilities;
(ii) a clear demonstration that the number of
eligible businesses identified in subparagraph (i)
above is insufficient to ensure adequate competition;
(iii) the difference in cost between the contract
proposals being offered by businesses owned by
minorities, women, and persons with disabilities and
the agency or public institution of higher education's
expectations of reasonable prices on bids or proposals
within that class; and
(iv) a list of eligible businesses owned by
minorities, women, and persons with disabilities that
the contractor has used in the current and prior
fiscal years.
(b) Determination. The Council's determination
concerning an individual contract exemption must consider,
at a minimum, the following:
(i) the justification for the requested exemption,
including whether diligent efforts were undertaken to
identify and solicit eligible businesses owned by
minorities, women, and persons with disabilities;
(ii) the total number of exemptions granted to the
affected agency, public institution of higher
education, or recipient of a grant or loan of State
funds of $250,000 or more complying with Section 45 of
the State Finance Act that have been granted by the
Council in the current and prior fiscal years; and
(iii) the percentage of contracts awarded by the
agency or public institution of higher education to
eligible businesses owned by minorities, women, and
persons with disabilities in the current and prior
fiscal years.
(2) Class exemptions.
(a) Creation. The Council, at the written request of
the affected agency or public institution of higher
education, may permit an entire class of contracts be made
exempt from State contracting goals for businesses owned
by minorities, women, and persons with disabilities
whenever there has been a determination, reduced to
writing and based on the best information available at the
time of the determination, that there is an insufficient
number of qualified businesses owned by minorities, women,
and persons with disabilities to ensure adequate
competition and an expectation of reasonable prices on
bids or proposals within that class. Any such exemption
shall be given by the Council to the Bureau on
Apprenticeship Programs and Clean Energy Jobs.
(a-1) Written request for class exemption. A written
request for a class exemption must include, but is not
limited to, the following:
(i) a list of eligible businesses owned by
minorities, women, and persons with disabilities;
(ii) a clear demonstration that the number of
eligible businesses identified in subparagraph (i)
above is insufficient to ensure adequate competition;
(iii) the difference in cost between the contract
proposals being offered by eligible businesses owned
by minorities, women, and persons with disabilities
and the agency or public institution of higher
education's expectations of reasonable prices on bids
or proposals within that class; and
(iv) the number of class exemptions the affected
agency or public institution of higher education
requested in the current and prior fiscal years.
(a-2) Determination. The Council's determination
concerning class exemptions must consider, at a minimum,
the following:
(i) the justification for the requested exemption,
including whether diligent efforts were undertaken to
identify and solicit eligible businesses owned by
minorities, women, and persons with disabilities;
(ii) the total number of class exemptions granted
to the requesting agency or public institution of
higher education that have been granted by the Council
in the current and prior fiscal years; and
(iii) the percentage of contracts awarded by the
agency or public institution of higher education to
eligible businesses owned by minorities, women, and
persons with disabilities the current and prior fiscal
years.
(b) Limitation. Any such class exemption shall not be
permitted for a period of more than one year at a time.
(3) Waivers. Where a particular contract requires a vendor
contractor to meet a goal established pursuant to this Act,
the vendor contractor shall have the right to request a waiver
from such requirements prior to the contract award. The
Business Enterprise Program shall evaluate a vendor's request
for a waiver based on the vendor's documented good faith
efforts to meet the contract-specific Business Enterprise
Program goal. The Council shall grant the waiver when the
contractor demonstrates that there has been made a good faith
effort to comply with the goals for participation by
businesses owned by minorities, women, and persons with
disabilities. Any such waiver shall also be transmitted in
writing to the Bureau on Apprenticeship Programs and Clean
Energy Jobs.
(a) Request for waiver. A vendor's contractor's
request for a waiver under this subsection (3) must
include, but is not limited to, the following, if
available:
(i) a list of eligible businesses owned by
minorities, women, and persons with disabilities that
pertain to the the class of contracts in the requested
waiver that were contacted by the vendor scope of work
of the contract. Eligible businesses are only eligible
if the business is certified for the products or work
advertised in the solicitation or bid;
(ii) (blank);
(iia) a clear demonstration that the vendor
contractor selected portions of the work to be
performed by certified vendors to facilitate meeting
the contract specific goal, and that certified vendors
that have the capability to perform the work of the
contract were eligible businesses owned by minorities,
women, and persons with disabilities, solicited
through all reasonable and available means eligible
businesses, and negotiated in good faith with
interested eligible businesses;
(iib) documentation demonstrating that certified
vendors businesses owned by minorities, women, and
persons with disabilities are not rejected as being
unqualified without sound reasons based on a thorough
investigation of their capabilities. The certified
vendor's standing within its industry, membership in
specific groups, organizations, or associations, and
political or social affiliations are not legitimate
causes for rejecting or not contacting or negotiating
with a certified vendor;
(iic) proof that the prime vendor solicited
eligible certified vendors with: (1) sufficient time
to respond; (2) adequate information about the scope,
specifications, and requirements of the solicitation
or bid, including plans, drawings, and addenda, to
allow eligible businesses an opportunity to respond to
the solicitation or bid; and (3) sufficient follow up
with certified vendors;
(iid) a clear demonstration that the prime vendor
communicated with certified vendors;
(iie) evidence that the prime vendor negotiated
with certified vendors to enter into subcontracts to
provide a commercially useful function of the contract
for a reasonable cost;
(iii) documentation demonstrating that the
difference in cost between the contract proposals
being offered by certified vendors is contract
proposals being offered by businesses owned by
minorities, women, and persons with disabilities are
excessive or unreasonable; and
(iv) a list of certified vendors businesses owned
by minorities, women, and persons with disabilities
that the contractor has used in the current and prior
fiscal years; .
(v) documentation demonstrating that the vendor
made efforts to utilize certified vendors despite the
ability or desire of a vendor to perform the work with
its own operations by selecting portions of the work
to be performed by certified vendors, which may, when
appropriate, include breaking out portions of the work
to be performed into economically feasible units to
facilitate certified vendor participation; and
(vi) documentation that the vendor used the
services of: (1) the State; (2) organizations or
contractors' groups representing or composed of
minorities, women, or persons with disabilities; (3)
local, State, or federal assistance offices
representing or assisting minorities, women, or
persons with disabilities; and (4) other organizations
that provide assistance in the recruitment and
engagement of certified vendors.
If any of the information required under this
subdivision (a) is not available to the vendor, despite
the vendor's good faith efforts to obtain the information,
the vendor's request for a waiver must contain a written
explanation of why that information is not included.
(b) Determination. The Council's determination
concerning waivers must include following:
(i) the justification for the requested waiver,
including whether the requesting vendor contractor
made a good faith effort to identify and solicit
certified vendors based on the criteria set forth in
this Section eligible businesses owned by minorities,
women, and persons with disabilities;
(ii) the total number of waivers the vendor
contractor has been granted by the Council in the
current and prior fiscal years;
(iii) (blank); and
(iv) the vendor's contractor's use of businesses
owned by minorities, women, and persons with
disabilities in the current and prior fiscal years.
(3.5) (Blank).
(4) Conflict with other laws. In the event that any State
contract, which otherwise would be subject to the provisions
of this Act, is or becomes subject to federal laws or
regulations which conflict with the provisions of this Act or
actions of the State taken pursuant hereto, the provisions of
the federal laws or regulations shall apply and the contract
shall be interpreted and enforced accordingly.
(5) Each chief procurement officer, as defined in the
Illinois Procurement Code, shall maintain on his or her
official Internet website a database of the following: (i)
waivers granted under this Section with respect to contracts
under his or her jurisdiction; (ii) a State agency or public
institution of higher education's written request for an
exemption of an individual contract or an entire class of
contracts; and (iii) the Council's written determination
granting or denying a request for an exemption of an
individual contract or an entire class of contracts. The
database, which shall be updated periodically as necessary,
shall be searchable by contractor name and by contracting
State agency.
(6) Each chief procurement officer, as defined by the
Illinois Procurement Code, shall maintain on its website a
list of all vendors firms that have been prohibited from
bidding, offering, or entering into a contract with the State
of Illinois as a result of violations of this Act.
Each public notice required by law of the award of a State
contract shall include for each bid or offer submitted for
that contract the following: (i) the bidder's or offeror's
name, (ii) the bid amount, (iii) the name or names of the
certified vendors firms identified in the bidder's or
offeror's submitted utilization plan, and (iv) the bid's
amount and percentage of the contract awarded to each
certified vendor that is a business businesses owned by
minorities, women, and persons with disabilities identified in
the utilization plan.
(Source: P.A. 101-170, eff. 1-1-20; 101-601, eff. 1-1-20;
101-657, eff. 1-1-22; 102-29, eff. 6-25-21; 102-662, eff.
9-15-21.)
ARTICLE 75. PUBLIC INSTITUTIONS OF HIGHER EDUCATION
Section 75-5. The Illinois Procurement Code is amended by
changing Section 1-13 as follows:
(30 ILCS 500/1-13)
Sec. 1-13. Applicability to public institutions of higher
education.
(a) This Code shall apply to public institutions of higher
education, regardless of the source of the funds with which
contracts are paid, except as provided in this Section.
(b) Except as provided in this Section, this Code shall
not apply to procurements made by or on behalf of public
institutions of higher education for any of the following:
(1) Memberships in professional, academic, research,
or athletic organizations on behalf of a public
institution of higher education, an employee of a public
institution of higher education, or a student at a public
institution of higher education.
(2) 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.
(3) 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, provided that the sponsor is providing a
majority of the funding for the event or activity.
(4) Procurement expenditures necessary to provide
athletic, artistic or musical services, performances,
events, or productions by or for a public institution of
higher education.
(5) 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.
(6) Procurement expenditures for placement of students
in externships, practicums, field experiences, and for
medical residencies and rotations.
(7) Contracts for programming and broadcast license
rights for university-operated radio and television
stations.
(8) 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.
(9) Contracts with a foreign entity for research or
educational activities, provided that the foreign entity
either does not maintain an office in the United States or
is the sole source of the service or product.
(10) Procurement expenditures for any ongoing software
license or maintenance agreement or competitively
solicited software purchase, when the software, license,
or maintenance agreement is available through only the
software creator or its manufacturer and not a reseller.
(11) Procurement expenditures incurred outside of the
United States for the recruitment of international
students.
(12) Procurement expenditures for contracts entered
into under the Public University Energy Conservation Act.
(13) Procurement expenditures for advertising
purchased directly from a media station or the owner of
the station for distribution of advertising.
Notice of each contract with an annual value of more than
$100,000 entered into by a public institution of higher
education that is related to the procurement of goods and
services identified in items (1) through (13) (11) of this
subsection shall be published in the Procurement Bulletin
within 14 calendar days after contract execution. The Chief
Procurement Officer shall prescribe the form and content of
the notice. Each public institution of higher education shall
provide the Chief Procurement Officer, on a monthly basis, in
the form and content prescribed by the Chief Procurement
Officer, a report of contracts that are related to the
procurement of goods and services identified in this
subsection. 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 Chief
Procurement Officer immediately upon request. The Chief
Procurement Officer 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 Chief Procurement Officer.
(b-5) Except as provided in this subsection, the
provisions of this Code shall not apply to contracts for
medical supplies or to contracts for medical services
necessary for the delivery of care and treatment at medical,
dental, or veterinary teaching facilities used by Southern
Illinois University or the University of Illinois or at any
university-operated health care center or dispensary that
provides care, treatment, and medications for students,
faculty, and staff. Furthermore, the provisions of this Code
do not apply to the procurement by such a facility of any
additional supplies or services that the operator of the
facility deems necessary for the effective use and functioning
of the medical supplies or services that are otherwise exempt
from this Code under this subsection (b-5). However, other
supplies and services needed for these teaching facilities
shall be subject to the jurisdiction of the Chief Procurement
Officer for Public Institutions of Higher Education who may
establish expedited procurement procedures and may waive or
modify certification, contract, hearing, process and
registration requirements required by the Code. All
procurements made under this subsection shall be documented
and may require publication in the Illinois Procurement
Bulletin.
(b-10) Procurements made by or on behalf of the University
of Illinois for investment services may be entered into or
renewed without being subject to the requirements of this
Code. Notice of intent to renew a contract shall be published
in the Illinois Public Higher Education Procurement Bulletin
at least 14 days prior to the execution of a renewal, and the
University of Illinois shall hold a public hearing for
interested parties to provide public comment. Any contract
extended, renewed, or entered pursuant to this exception shall
be published in the Illinois Public Higher Education
Procurement Bulletin within 5 days of contract execution.
(c) Procurements made by or on behalf of public
institutions of higher education for the fulfillment of a
grant shall be made in accordance with the requirements of
this Code to the extent practical.
Upon the written request of a public institution of higher
education, the Chief Procurement Officer may waive contract,
registration, certification, and hearing requirements of this
Code if, based on the item to be procured or the terms of a
grant, compliance is impractical. The public institution of
higher education shall provide the Chief Procurement Officer
with specific reasons for the waiver, including the necessity
of contracting with a particular potential contractor, and
shall certify that an effort was made in good faith to comply
with the provisions of this Code. The Chief Procurement
Officer shall provide written justification for any waivers.
By November 1 of each year, the Chief Procurement Officer
shall file a report with the General Assembly identifying each
contract approved with waivers and providing the justification
given for any waivers for each of those contracts. Notice of
each waiver made under this subsection shall be published in
the Procurement Bulletin within 14 calendar days after
contract execution. The Chief Procurement Officer shall
prescribe the form and content of the notice.
(d) Notwithstanding this Section, a waiver of the
registration requirements of Section 20-160 does not permit a
business entity and any affiliated entities or affiliated
persons to make campaign contributions if otherwise prohibited
by Section 50-37. The total amount of contracts awarded in
accordance with this Section shall be included in determining
the aggregate amount of contracts or pending bids of a
business entity and any affiliated entities or affiliated
persons.
(e) Notwithstanding subsection (e) of Section 50-10.5 of
this Code, the Chief Procurement Officer, with the approval of
the Executive Ethics Commission, may permit a public
institution of higher education to accept a bid or enter into a
contract with a business that assisted the public institution
of higher education in determining whether there is a need for
a contract or assisted in reviewing, drafting, or preparing
documents related to a bid or contract, provided that the bid
or contract is essential to research administered by the
public institution of higher education and it is in the best
interest of the public institution of higher education to
accept the bid or contract. For purposes of this subsection,
"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. The Executive
Ethics Commission may promulgate rules and regulations for the
implementation and administration of the provisions of this
subsection (e).
(f) As used in 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.
"Public institution of higher education" means Chicago
State University, Eastern Illinois University, Governors State
University, Illinois State University, Northeastern Illinois
University, Northern Illinois University, Southern Illinois
University, University of Illinois, Western Illinois
University, and, for purposes of this Code only, the Illinois
Mathematics and Science Academy.
(g) (Blank).
(h) The General Assembly finds and declares that:
(1) Public Act 98-1076, which took effect on January
1, 2015, changed the repeal date set for this Section from
December 31, 2014 to December 31, 2016.
(2) The Statute on Statutes sets forth general rules
on the repeal of statutes and the construction of multiple
amendments, but Section 1 of that Act also states that
these rules will not be observed when the result would be
"inconsistent with the manifest intent of the General
Assembly or repugnant to the context of the statute".
(3) This amendatory Act of the 100th General Assembly
manifests the intention of the General Assembly to remove
the repeal of this Section.
(4) This Section was originally enacted to protect,
promote, and preserve the general welfare. Any
construction of this Section that results in the repeal of
this Section on December 31, 2014 would be inconsistent
with the manifest intent of the General Assembly and
repugnant to the context of this Code.
It is hereby declared to have been the intent of the
General Assembly that this Section not be subject to repeal on
December 31, 2014.
This Section shall be deemed to have been in continuous
effect since December 20, 2011 (the effective date of Public
Act 97-643), and it shall continue to be in effect
henceforward until it is otherwise lawfully repealed. All
previously enacted amendments to this Section taking effect on
or after December 31, 2014, are hereby validated.
All actions taken in reliance on or pursuant to this
Section by any public institution of higher education, person,
or entity are hereby validated.
In order to ensure the continuing effectiveness of this
Section, it is set forth in full and re-enacted by this
amendatory Act of the 100th General Assembly. This
re-enactment is intended as a continuation of this Section. It
is not intended to supersede any amendment to this Section
that is enacted by the 100th General Assembly.
In this amendatory Act of the 100th General Assembly, the
base text of the reenacted Section is set forth as amended by
Public Act 98-1076. Striking and underscoring is used only to
show changes being made to the base text.
This Section applies to all procurements made on or before
the effective date of this amendatory Act of the 100th General
Assembly.
(Source: P.A. 101-640, eff. 6-12-20; 102-16, eff. 6-17-21;
102-721, eff. 5-6-22; 102-1119, eff. 1-23-23.)
ARTICLE 80. STATE FAIRGROUNDS
Section 80-5. The State Fair Act is amended by adding
Section 7.1 as follows:
(20 ILCS 210/7.1 new)
Sec. 7.1. Procurement for artistic or musical services,
performances, events, or productions on the State Fairgrounds.
(a) Procurement expenditures necessary to provide artistic
or musical services, performances, events, or productions
under this Act at the State Fairgrounds in Springfield and
DuQuoin are exempt from the requirements of the Illinois
Procurement Code. The expenditures may include, but are not
limited to, entertainment, advertising, concessions, space
rentals, sponsorships, and other services necessary to provide
such events.
(b) Notice of each contract with an annual value of more
than $100,000 entered into by the Department that is related
to the procurement of goods and services identified in this
Section shall be published in the Illinois Procurement
Bulletin within 30 calendar days after contract execution. The
Department shall provide the chief procurement officer, on a
monthly basis, a report of 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 reference to the exception in this Section. A
copy of any or all of these contracts shall be made available
to the chief procurement officer immediately upon request.
(c) This Section is repealed on July 1, 2028.
ARTICLE 85. TRANSPORTATION SUSTAINABILITY PROCUREMENT PROGRAM
Section 85-5. The Transportation Sustainability
Procurement Program Act is amended by changing Section 10 as
follows:
(30 ILCS 530/10)
Sec. 10. Contracts for the procurement of freight, small
package delivery, and other cargo shipping and transportation
services.
(a) The State's Chief Procurement Officers shall, in
consultation with the Illinois Environmental Protection
Agency, develop a sustainability program for the State's
procurement of shipping and transportation services for
freight, small package delivery, and other forms of cargo.
(b) 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 Agency for that
purpose:
(1) 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;
(2) the energy use and greenhouse gas emissions by the
service provider's subcontractors in the performance of
those services.
(c) The State's solicitation for the procurement of
freight, small package delivery, and other cargo shipping and
transportation services shall be subject to the Illinois
Procurement Code or the Governmental Joint Purchasing Act and
shall:
(1) specify how the bidder will report its energy use
and associated greenhouse gas emissions under the
contract; and
(2) call for bidders to disclose in their responses to
the solicitation:
(A) measures they use to reduce vehicle engine
idling;
(B) their use of multi-modal transportation, such
as rail, trucks, or air transport, and how the use of
those types of transportation is anticipated to reduce
costs for the State;
(C) the extent of their use of (i) cleaner, less
expensive fuels as an alternative to petroleum or (ii)
more efficient vehicle propulsion systems;
(D) the level of transparency of the provider's
reporting under subsection (b), and what independent
verification and assurance measures exist for this
reporting;
(E) their use of speed governors on heavy trucks;
(F) their use of recyclable packaging;
(G) measures of their network efficiency,
including the in-vehicle use of telematics or other
related technologies that provide for improved vehicle
and network optimization and efficiencies;
(H) their energy intensity per unit of output
delivered;
(I) how they will advance the environmental goals
of the State; and
(J) opportunities to effectively neutralize the
greenhouse gas emissions reported under subsection
(b).
(d) In selecting providers for such services, the State,
as part of a best value analysis of the responses to the
State's solicitation:
(1) shall give appropriate weight to the disclosures
in subdivision (c)(2) of this Section;
(2) shall give appropriate weight to the price and
quality of the services being offered; and
(3) may accept from the service provider an optional
offer at a reasonable cost of carbon neutral shipping in
which the provider calculates the direct and indirect
greenhouse gas emissions of the provider that are
specified under subsection (b) above, and obtains
independently verified carbon credits to offset those
emissions and then retires the carbon credits.
(e) The Chief Procurement Officer identified under item
(5) of Section 1-15.15 of the Illinois Procurement Code shall
adopt rules to encourage all State agencies to use the least
costly level of service or mode of transport (while
distinguishing between express or air versus ground delivery)
that can achieve on-time delivery for the product being
transported and delivered.
(Source: P.A. 98-348, eff. 8-14-13.)
ARTICLE 90. PUBLIC-PRIVATE PARTNERSHIP FOR TRANSPORTATION ACT
Section 90-5. The Public-Private Partnerships for
Transportation Act is amended by changing Sections 5, 10, 15,
20, 30, 35, 40, 45, 50, 55, 65, 70, 80, and 85 and by adding
Section 19 as follows:
(630 ILCS 5/5)
Sec. 5. Public policy and legislative intent.
(a) It is the public policy of the State of Illinois to
promote the design, development, construction, financing, and
operation of transportation facilities that serve the needs of
the public.
(b) Existing methods of procurement and financing of
transportation facilities by responsible public entities
transportation agencies impose limitations on the methods by
which transportation facilities may be developed and operated
within the State.
(c) Authorizing responsible public entities transportation
agencies to enter into public-private partnerships, whereby
private entities may develop, operate, and finance
transportation facilities, has the potential to promote the
development of transportation facilities in the State as well
as investment in the State.
(d) It is the intent of this Act to promote public-private
partnerships for transportation by authorizing responsible
public entities transportation agencies to enter into
public-private agreements related to the design, development,
construction, operation, and financing of transportation
facilities.
(e) It is the intent of this Act to encourage the practice
of congestion pricing in connection with toll highways,
pursuant to which higher toll rates are charged during times
or in locations of most congestion.
(f) It is the intent of this Act to use Illinois design
professionals, construction companies, and workers to the
greatest extent possible by offering them the right to compete
for this work.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/10)
Sec. 10. Definitions. As used in this Act:
"Approved proposal" means the proposal that is approved by
the responsible public entity transportation agency pursuant
to subsection (j) of Section 20 of this Act.
"Approved proposer" means the private entity whose
proposal is the approved proposal.
"Authority" means the Illinois State Toll Highway
Authority.
"Contractor" means a private entity that has entered into
a public-private agreement with the responsible public entity
transportation agency to provide services to or on behalf of
the responsible public entity transportation agency.
"Department" means the Illinois Department of
Transportation.
"Design-build agreement" means the agreement between the
selected private entity and the responsible public entity
transportation agency under which the selected private entity
agrees to furnish design, construction, and related services
for a transportation facility under this Act.
"Develop" or "development" means to do one or more of the
following: plan, design, develop, lease, acquire, install,
construct, reconstruct, rehabilitate, extend, or expand.
"Maintain" or "maintenance" includes ordinary maintenance,
repair, rehabilitation, capital maintenance, maintenance
replacement, and any other categories of maintenance that may
be designated by the responsible public entity transportation
agency.
"Metropolitan planning organization" means a metropolitan
planning organization designated under 23 U.S.C. Section 134
whose metropolitan planning area boundaries are partially or
completely within the State.
"Operate" or "operation" means to do one or more of the
following: maintain, improve, equip, modify, or otherwise
operate.
"Private entity" means any combination of one or more
individuals, corporations, general partnerships, limited
liability companies, limited partnerships, joint ventures,
business trusts, nonprofit entities, or other business
entities that are parties to a proposal for a transportation
project or an agreement related to a transportation project. A
public agency may provide services to a contractor as a
subcontractor or subconsultant without affecting the private
status of the private entity and the ability to enter into a
public-private agreement. A transportation agency is not a
private entity.
"Proposal" means all materials and documents prepared by
or on behalf of a private entity relating to the proposed
development, financing, or operation of a transportation
facility as a transportation project.
"Proposer" means a private entity that has submitted an
unsolicited proposal for a public-private agreement to a
responsible public entity under this Act or a proposal or
statement of qualifications for a public-private agreement in
response to a request for proposals or a request for
qualifications issued by a responsible public entity
transportation agency under this Act.
"Public-private agreement" means the public-private
agreement between the contractor and the responsible public
entity transportation agency relating to one or more of the
development, financing, or operation of a transportation
project that is entered into under this Act.
"Request for information" means all materials and
documents prepared by or on behalf of the responsible public
entity transportation agency to solicit information from
private entities with respect to transportation projects.
"Request for proposals" means all materials and documents
prepared by or on behalf of the responsible public entity
transportation agency to solicit proposals from private
entities to enter into a public-private agreement.
"Request for qualifications" means all materials and
documents prepared by or on behalf of the responsible public
entity transportation agency to solicit statements of
qualification from private entities to enter into a
public-private agreement.
"Responsible public entity" means the Department of
Transportation, the Illinois State Toll Highway Authority.
"Revenues" means all revenues, including any combination
of: income; earnings and interest; user fees; lease payments;
allocations; federal, State, and local appropriations, grants,
loans, lines of credit, and credit guarantees; bond proceeds;
equity investments; service payments; or other receipts;
arising out of or in connection with a transportation project,
including the development, financing, and operation of a
transportation project. The term includes money received as
grants, loans, lines of credit, credit guarantees, or
otherwise in aid of a transportation project from the federal
government, the State, a unit of local government, or any
agency or instrumentality of the federal government, the
State, or a unit of local government.
"Shortlist" means the process by which a responsible
public entity transportation agency will review, evaluate, and
rank statements of qualifications submitted in response to a
request for qualifications and then identify the proposers who
are eligible to submit a detailed proposal in response to a
request for proposals. The identified proposers constitute the
shortlist for the transportation project to which the request
for proposals relates.
"Transportation agency" means (i) the Department or (ii)
the Authority.
"Transportation facility" means any new or existing road,
highway, toll highway, bridge, tunnel, intermodal facility,
intercity or high-speed passenger rail, or other
transportation facility or infrastructure, excluding airports,
under the jurisdiction of a responsible public entity the
Department or the Authority, except those facilities for the
Illiana Expressway. The term "transportation facility" may
refer to one or more transportation facilities that are
proposed to be developed or operated as part of a single
transportation project.
"Transportation project" or "project" means any or the
combination of the design, development, construction,
financing, or operation with respect to all or a portion of any
transportation facility under the jurisdiction of the
responsible public entity transportation agency, except those
facilities for the Illiana Expressway, undertaken pursuant to
this Act.
"Unit of local government" has the meaning ascribed to
that term in Article VII, Section 1 of the Constitution of the
State of Illinois and also means any unit designated as a
municipal corporation.
"Unsolicited proposal" means a written proposal that is
submitted to a responsible public entity on the initiative of
the private sector entity or entities for the purpose of
developing a partnership, and that is not in response to a
formal or informal request issued by a responsible public
entity.
"User fees" or "tolls" means the rates, tolls, fees, or
other charges imposed by the contractor for use of all or a
portion of a transportation project under a public-private
agreement.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.)
(630 ILCS 5/15)
Sec. 15. Formation of public-private agreements; project
planning.
(a) Each responsible public entity transportation agency
may exercise the powers granted by this Act to do some or all
to design, develop, construct, finance, and operate any part
of one or more transportation projects through public-private
agreements with one or more private entities, except for
transportation projects for the Illiana Expressway as defined
in the Public Private Agreements for the Illiana Expressway
Act. The net proceeds, if any, arising out of a transportation
project or public-private agreement undertaken by the
Department pursuant to this Act shall be deposited into the
Public-Private Partnerships for Transportation Fund. The net
proceeds arising out of a transportation project or
public-private agreement undertaken by the Authority pursuant
to this Act shall be deposited into the Illinois State Toll
Highway Authority Fund and shall be used only as authorized by
Section 23 of the Toll Highway Act.
(b) The Authority shall not enter into a public-private
agreement involving a lease or other transfer of any toll
highway, or portions thereof, under the Authority's
jurisdiction which were open to vehicular traffic on the
effective date of this Act. The Authority shall not enter into
a public-private agreement for the purpose of making roadway
improvements, including but not limited to reconstruction,
adding lanes, and adding ramps, to any toll highway, or
portions thereof, under the Authority's jurisdiction which
were open to vehicular traffic on the effective date of this
Act. The Authority shall not use any revenue generated by any
toll highway, or portions thereof, under the Authority's
jurisdiction which were open to vehicular traffic on the
effective date of this Act to enter into or provide funding for
a public-private agreement. The Authority shall not use any
asset, or the proceeds from the sale or lease of any such
asset, which was owned by the Authority on the effective date
of this Act to enter into or provide funding for a
public-private agreement. The Authority may enter into a
public-private partnership to design, develop, construct,
finance, and operate new toll highways authorized by the
Governor and the General Assembly pursuant to Section 14.1 of
the Toll Highway Act, non-highway transportation projects on
the toll highway system such as commuter rail or high-speed
rail lines, and intelligent transportation infrastructure that
will enhance the safety, efficiency, and environmental quality
of the toll highway system. The Authority may operate or
provide operational services such as toll collection on
highways which are developed or financed, or both, through a
public-private agreement entered into by another public
entity, under an agreement with the public entity or
contractor responsible for the transportation project.
(c) A contractor has:
(1) all powers allowed by law generally to a private
entity having the same form of organization as the
contractor; and
(2) the power to develop, finance, and operate the
transportation facility and to impose user fees in
connection with the use of the transportation facility,
subject to the terms of the public-private agreement.
No tolls or user fees may be imposed by the contractor
except as set forth in a public-private agreement.
(d) Each year, at least 30 days prior to the beginning of
the transportation agency's fiscal year, and at other times
the transportation agency deems necessary, the Department and
the Authority shall submit for review to the General Assembly
a description of potential projects that the transportation
agency is considering undertaking under this Act. Any
submission from the Authority shall indicate which of its
potential projects, if any, will involve the proposer
operating the transportation facility for a period of one year
or more. Prior to commencing the procurement process under an
unsolicited proposal or the issuance of any request for
qualifications or request for proposals with respect to any
potential project undertaken by a responsible public entity
the Department or the Authority pursuant to Section 19 or 20 of
this Act, the commencement of a procurement process for that
particular potential project shall be authorized by joint
resolution of the General Assembly.
(e) (Blank). Each year, at least 30 days prior to the
beginning of the transportation agency's fiscal year, the
transportation agency shall submit a description of potential
projects that the transportation agency is considering
undertaking under this Act to each county, municipality, and
metropolitan planning organization, with respect to each
project located within its boundaries.
(f) Any project undertaken under this Act shall be subject
to all applicable planning requirements otherwise required by
law, including land use planning, regional planning,
transportation planning, and environmental compliance
requirements.
(g) (Blank). Any new transportation facility developed as
a project under this Act must be consistent with the regional
plan then in existence of any metropolitan planning
organization in whose boundaries the project is located.
(h) The responsible public entity transportation agency
shall hold one or more public hearings following within 30
days of each of its submittals to the General Assembly under
subsection (d) of this Section. These public hearings shall
address any potential project projects that the responsible
public entity transportation agency submitted to the General
Assembly for review under subsection (d). The responsible
public entity transportation agency shall publish a notice of
the hearing or hearings at least 7 days before a hearing takes
place, and shall include the following in the notice: (i) the
date, time, and place of the hearing and the address of the
responsible public entity transportation agency; (ii) a brief
description of the potential projects that the responsible
public entity transportation agency is considering
undertaking; and (iii) a statement that the public may comment
on the potential projects.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.)
(630 ILCS 5/19 new)
Sec. 19. Unsolicited proposals.
(a) A responsible public entity may receive unsolicited
proposals for a project and may thereafter enter into a
public-private agreement with a private entity, or a
consortium of private entities, for the design, construction,
upgrading, operating, ownership, or financing of facilities.
(b) A responsible public entity may consider, evaluate,
and accept an unsolicited proposal for a public-private
partnership project from a private entity if the proposal:
(1) is independently developed and drafted by the
proposer without responsible public entity supervision;
(2) shows that the proposed project could benefit the
transportation system;
(3) includes a financing plan to allow the project to
move forward pursuant to the applicable responsible public
entity's budget and finance requirements; and
(4) includes sufficient detail and information for the
responsible public entity to evaluate the proposal in an
objective and timely manner and permit a determination
that the project would be worthwhile.
(c) The unsolicited proposal shall include the following:
(1) an executive summary covering the major elements
of the proposal;
(2) qualifications concerning the experience,
expertise, technical competence, and qualifications of the
private entity and of each member of its management team
and of other key employees, consultants, and
subcontractors, including the name, address, and
professional designation;
(3) a project description, including, when applicable:
(A) the limits, scope, and location of the
proposed project;
(B) right-of-way requirements;
(C) connections with other facilities and
improvements to those facilities necessary if the
project is developed;
(D) a conceptual project design; and
(E) a statement of the project's relationship to
and impact upon relevant existing plans of the
responsible public entity;
(4) a facilities project schedule, including when
applicable, estimates of:
(A) dates of contract award;
(B) start of construction;
(C) completion of construction;
(D) start of operations; and
(E) major maintenance or reconstruction activities
during the life of the proposed project agreement;
(5) an operating plan describing the operation of the
completed facility if operation of a facility is part of
the proposal, describing the management structure and
approach, the proposed period of operations, enforcement,
emergency response, and other relevant information;
(6) a finance plan describing the proposed financing
of the project, identifying the source of funds to, where
applicable, design, construct, maintain, and manage the
project during the term of the proposed contract; and
(7) the legal basis for the project and licenses and
certifications; the private entity must demonstrate that
it has all licenses and certificates necessary to complete
the project.
(d) Within 120 days after receiving an unsolicited
proposal, the responsible public entity shall complete a
preliminary evaluation of the unsolicited proposal and shall
either:
(1) if the preliminary evaluation is unfavorable,
return the proposal without further action;
(2) if the preliminary evaluation is favorable, notify
the proposer that the responsible public entity will
further evaluate the proposal; or
(3) request amendments, clarification, or modification
of the unsolicited proposal.
(e) The procurement process for unsolicited proposals
shall be as follows:
(1) If the responsible public entity chooses to
further evaluate an unsolicited proposal with the intent
to enter into a public-private agreement for the proposed
project, then the responsible public entity shall publish
notice in the Illinois Procurement Bulletin or in a
newspaper of general circulation covering the location of
the project at least once a week for 2 weeks stating that
the responsible public entity has received a proposal and
will accept other proposals for the same project. The time
frame within which the responsible public entity may
accept other proposals shall be determined by the
responsible public entity on a project-by-project basis
based upon the complexity of the transportation project
and the public benefit to be gained by allowing a longer or
shorter period of time within which other proposals may be
received; however, the time frame for allowing other
proposals must be at least 21 days, but no more than 120
days, after the initial date of publication.
(2) A copy of the notice must be mailed to each local
government directly affected by the transportation
project.
(3) The responsible public entity shall provide
reasonably sufficient information, including the identity
of its contact person, to enable other private entities to
make proposals.
(4) If, after no less than 120 days, no
counterproposal is received, or if the counterproposals
are evaluated and found to be equal to or inferior to the
original unsolicited proposal, the responsible public
entity may proceed to negotiate a contract with the
original proposer.
(5) If, after no less than 120 days, one or more
counterproposals meeting unsolicited proposal standards
are received, and if, in the opinion of the responsible
public entity, the counterproposals are evaluated and
found to be superior to the original unsolicited proposal,
the responsible public entity shall proceed to determine
the successful participant through a final procurement
phase known as "Best and Final Offer" (BAFO). The BAFO is a
process whereby a responsible public entity shall invite
the original private sector party and the proponent
submitting the superior counterproposal to engage in a
BAFO phase. The invitation to participate in the BAFO
phase will provide to each participating proposer:
(A) the general concepts that were considered
superior to the original proposal, while keeping
proprietary information contained in the proposals
confidential to the extent possible; and
(B) the preestablished evaluation criteria or the
"basis of award" to be used to determine the
successful proponent.
(6) Offers received in response to the BAFO invitation
will be reviewed by the responsible public entity and
scored in accordance with a preestablished criteria, or
alternatively, in accordance with the basis of award
provision identified through the BAFO process. The
successful proponent will be the proponent offering "best
value" to the responsible public entity.
(7) In all cases, the basis of award will be the best
value to the responsible public entity, as determined by
the responsible public entity.
(f) After a comprehensive evaluation and acceptance of an
unsolicited proposal and any alternatives, the responsible
public entity may commence negotiations with a proposer,
considering:
(1) the proposal has received a favorable
comprehensive evaluation;
(2) the proposal is not duplicative of existing
infrastructure project;
(3) the alternative proposal does not closely resemble
a pending competitive proposal for a public-private
private partnership or other procurement;
(4) the proposal demonstrates a unique method,
approach, or concept;
(5) facts and circumstances that preclude or warrant
additional competition;
(6) the availability of any funds, debts, or assets
that the State will contribute to the project;
(7) facts and circumstances demonstrating that the
project will likely have a significant adverse impact on
on State bond ratings; and
(8) indemnifications included in the proposal.
(630 ILCS 5/20)
Sec. 20. Competitive procurement Procurement process.
(a) A responsible public entity may solicit proposals for
a transportation project from private entities. The
responsible public entity transportation agency seeking to
enter into a public-private partnership with a private entity
for the development, finance, and operation of a
transportation facility as a transportation project shall
determine and set forth the criteria for the selection
process. The responsible public entity transportation agency
shall use (i) a competitive sealed bidding process, (ii) a
competitive sealed proposal process, or (iii) a design-build
procurement process in accordance with Section 25 of this Act.
Before using one of these processes the responsible public
entity transportation agency may use a request for information
to obtain information relating to possible public-private
partnerships.
(b) If a transportation project will require the
performance of design work, the responsible public entity
transportation agency shall use the shortlist selection
process set forth in subsection (g) of this Section to
evaluate and shortlist private entities based on
qualifications, including but not limited to design
qualifications.
A request for qualifications, request for proposals, or
public-private agreement awarded to a contractor for a
transportation project shall require that any subsequent need
for architectural, engineering, or land surveying services
which arises after the submittal of the request for
qualifications or request for proposals or the awarding of the
public-private agreement shall be procured by the contractor
using a qualifications-based selection process consisting of:
(1) the publication of notice of availability of
services;
(2) a statement of desired qualifications;
(3) an evaluation based on the desired qualifications;
(4) the development of a shortlist ranking the firms
in order of qualifications; and
(5) negotiations with the ranked firms for a fair and
reasonable fee.
Compliance with the Architectural, Engineering, and Land
Surveying Qualifications Based Selection Act shall be deemed
prima facie compliance with this subsection (b). Every
transportation project contract shall include provisions
setting forth the requirements of this subsection (b).
(c) (Blank). Prior to commencing a procurement for a
transportation project under this Act, the transportation
agency shall notify any other applicable public agency,
including the Authority, in all cases involving toll
facilities where the Department would commence the
procurement, of its interest in undertaking the procurement
and shall provide the other public agency or agencies with an
opportunity to offer to develop and implement the
transportation project. The transportation agency shall supply
the other public agency or agencies with no less than the same
level and type of information concerning the project that the
transportation agency would supply to private entities in the
procurement, unless that information is not then available, in
which case the transportation agency shall supply the other
public agency or agencies with the maximum amount of relevant
information about the project as is then reasonably available.
The transportation agency shall make available to the other
public agencies the same subsidies, benefits, concessions, and
other consideration that it intends to make available to the
private entities in the procurement.
The public agencies shall have a maximum period of 60 days
to review the information about the proposed transportation
project and to respond to the transportation agency in writing
to accept or reject the opportunity to develop and implement
the transportation project. If a public agency rejects the
opportunity during the 60-day period, then the public agency
may not participate in the procurement for the proposed
transportation project by submitting a proposal of its own. If
a public agency fails to accept or reject this opportunity in
writing within the 60-day period, it shall be deemed to have
rejected the opportunity.
If a public agency accepts the opportunity within the
60-day period, then the public agency shall have up to 120 days
(or a longer period, if extended by the transportation
agency), to (i) submit to the transportation agency a
reasonable plan for development of the transportation project;
(ii) if applicable, make an offer of reasonable consideration
for the opportunity to undertake the transportation project;
and (iii) negotiate a mutually acceptable intergovernmental
agreement with the transportation agency that facilitates the
development of the transportation project and requires that
the transportation agency follow its procurement procedures
under the Illinois Procurement Code and applicable rules
rather than this Act. In considering whether a public agency's
plan for developing and implementing the project is
reasonable, the transportation agency shall consider the
public agency's history of developing and implementing similar
projects, the public agency's current capacity to develop and
implement the proposed project, the user charges, if any,
contemplated by the public agency's plan and how these user
charges compare with user charges that would be imposed by a
private entity developing and implementing the same project,
the project delivery schedule proposed by the public agency,
and other reasonable factors that are necessary, including
consideration of risks and whether subsidy costs may be
reduced, to determine whether development and implementation
of the project by the public agency is in the best interest of
the people of this State.
(d) (Blank). If the transportation agency rejects or fails
to negotiate mutually acceptable terms regarding a public
agency's plan for developing and implementing the
transportation project during the 120-day period described in
subsection (c), then the public agency may not participate in
the procurement for the proposed transportation project by
submitting a proposal of its own. Following a rejection or
failure to reach agreement regarding a public agency's plan,
if the transportation agency later proceeds with a procurement
in which it materially changes (i) the nature or scope of the
project; (ii) any subsidies, benefits, concessions, or other
significant project-related considerations made available to
the bidders; or (iii) any other terms of the project, as
compared to when the transportation agency supplied
information about the project to public agencies under
subsection (c), then the transportation agency shall give
public agencies another opportunity in accordance with
subsection (c) to provide proposals for developing and
implementing the project.
(e) (Blank). Nothing in this Section 20 requires a
transportation agency to go through a procurement process
prior to developing and implementing a project through a
public agency as described in subsection (c).
(f) All procurement processes shall incorporate
requirements and set forth goals for participation by
disadvantaged business enterprises as allowed under State and
federal law.
(g) The responsible public entity transportation agency
shall establish a process to shortlist potential private
entities. The responsible public entity transportation agency
shall: (i) provide a public notice of the shortlisting process
for such period as deemed appropriate by the agency; (ii) set
forth requirements and evaluation criteria in a request for
qualifications; (iii) develop a shortlist by determining which
private entities that have submitted statements of
qualification, if any, meet the minimum requirements and best
satisfy the evaluation criteria set forth in the request for
qualifications; and (iv) allow only those entities, or groups
of entities such as unincorporated joint ventures, that have
been shortlisted to submit proposals or bids. Throughout the
procurement period and as necessary following the award of a
contract, the responsible public entity transportation agency
shall make publicly available on its website information
regarding firms that are prequalified by the responsible
public entity transportation agency pursuant to Section 20 of
the Architectural, Engineering, and Land Surveying
Qualifications Based Selection Act to provide architectural,
engineering, and land surveying services. The responsible
public entities transportation agencies shall require private
entities to use firms prequalified under this Act to provide
architectural, engineering, and land surveying services. Firms
identified to provide architectural, engineering, and land
surveying services in a statement of qualifications shall be
prequalified under the Act to provide the identified services
prior to the responsible public entity's transportation
agency's award of the contract.
(h) Competitive sealed bidding requirements:
(1) All contracts shall be awarded by competitive
sealed bidding except as otherwise provided in subsection
(i) of this Section, Section 19 of this Act, and Section 25
of this Act.
(2) An invitation for bids shall be issued and shall
include a description of the public-private partnership
with a private entity for the development, finance, and
operation of a transportation facility as a transportation
project, and the material contractual terms and conditions
applicable to the procurement.
(3) Public notice of the invitation for bids shall be
published in the State of Illinois Procurement Bulletin at
least 21 days before the date set in the invitation for the
opening of bids.
(4) Bids shall be opened publicly in the presence of
one or more witnesses at the time and place designated in
the invitation for bids. The name of each bidder, the
amount of each bid, and other relevant information as may
be specified by rule shall be recorded. After the award of
the contract, the winning bid and the record of each
unsuccessful bid shall be open to public inspection.
(5) Bids shall be unconditionally accepted without
alteration or correction, except as authorized in this
Act. Bids shall be evaluated based on the requirements set
forth in the invitation for bids, which may include
criteria to determine acceptability such as inspection,
testing, quality, workmanship, delivery, and suitability
for a particular purpose. Those criteria that will affect
the bid price and be considered in evaluation for award,
such as discounts, transportation costs, and total or life
cycle costs, shall be objectively measurable. The
invitation for bids shall set forth the evaluation
criteria to be used.
(6) Correction or withdrawal of inadvertently
erroneous bids before or after award, or cancellation of
awards of contracts based on bid mistakes, shall be
permitted in accordance with rules. After bid opening, no
changes in bid prices or other provisions of bids
prejudicial to the interest of the State or fair
competition shall be permitted. All decisions to permit
the correction or withdrawal of bids based on bid mistakes
shall be supported by written determination made by the
responsible public entity transportation agency.
(7) The contract shall be awarded with reasonable
promptness by written notice to the lowest responsible and
responsive bidder whose bid meets the requirements and
criteria set forth in the invitation for bids, except when
the responsible public entity transportation agency
determines it is not in the best interest of the State and
by written explanation determines another bidder shall
receive the award. The explanation shall appear in the
appropriate volume of the State of Illinois Procurement
Bulletin. The written explanation must include:
(A) a description of the responsible public
entity's agency'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, pricing, and
the reasons for selecting that bidder.
(8) When it is considered impracticable to initially
prepare a purchase description to support an award based
on price, an invitation for bids may be issued requesting
the submission of unpriced offers to be followed by an
invitation for bids limited to those bidders whose offers
have been qualified under the criteria set forth in the
first solicitation.
(i) Competitive sealed proposal requirements:
(1) When the responsible public entity transportation
agency determines in writing that the use of competitive
sealed bidding or design-build procurement is either not
practicable or not advantageous to the State, a contract
may be entered into by competitive sealed proposals.
(2) Proposals shall be solicited through a request for
proposals.
(3) Public notice of the request for proposals shall
be published in the State of Illinois Procurement Bulletin
at least 21 days before the date set in the invitation for
the opening of proposals.
(4) Proposals shall be opened publicly in the presence
of one or more witnesses at the time and place designated
in the request for proposals, 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 contract award.
(5) The requests for proposals shall state the
relative importance of price and other evaluation factors.
Proposals shall be submitted in 2 parts: (i) covering
items except price; and (ii) covering price. The first
part of all proposals shall be evaluated and ranked
independently of the second part of all proposals.
(6) As provided in the request for proposals and under
any applicable rules, discussions 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 and 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.
(7) Awards shall be made to the responsible offeror
whose proposal is determined in writing to be the most
advantageous to the State, 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.
(j) The responsible public entity In the case of a
proposal or proposals to the Department or the Authority, the
transportation agency shall determine, based on its review and
evaluation of the proposal or proposals received in response
to the request for proposals, which one or more proposals, if
any, best serve the public purpose of this Act and satisfy the
criteria set forth in the request for proposals and, with
respect to such proposal or proposals, shall:
(1) submit the proposal or proposals to the Commission
on Government Forecasting and Accountability, which,
within 20 days of submission by the responsible public
entity transportation agency, shall complete a review of
the proposal or proposals and report on the value of the
proposal or proposals to the State;
(2) hold one or more public hearings on the proposal
or proposals, publish notice of the hearing or hearings at
least 7 days before the hearing, and include the following
in the notice: (i) the date, time, and place of the hearing
and the address of the responsible public entity
transportation agency, (ii) the subject matter of the
hearing, (iii) a description of the agreement to be
awarded, (iv) the determination made by the responsible
public entity transportation agency that such proposal or
proposals best serve the public purpose of this Act and
satisfy the criteria set forth in the request for
proposals, and (v) that the public may be heard on the
proposal or proposals during the public hearing; and
(3) determine whether or not to recommend to the
Governor that the Governor approve the proposal or
proposals.
The Governor may approve one or more proposals recommended
by the Department or the Authority based upon the review,
evaluation, and recommendation of the responsible public
entity transportation agency, the review and report of the
Commission on Government Forecasting and Accountability, the
public hearing, and the best interests of the State.
(k) In addition to any other rights under this Act, in
connection with any procurement under this Act, the following
rights are reserved to each responsible public entity
transportation agency:
(1) to withdraw a request for information, a request
for qualifications, or a request for proposals at any
time, and to publish a new request for information,
request for qualifications, or request for proposals;
(2) to not approve a proposal for any reason;
(3) to not award a public-private agreement for any
reason;
(4) to request clarifications to any statement of
information, qualifications, or proposal received, to seek
one or more revised proposals or one or more best and final
offers, or to conduct negotiations with one or more
private entities that have submitted proposals;
(5) to modify, during the pendency of a procurement,
the terms, provisions, and conditions of a request for
information, request for qualifications, or request for
proposals or the technical specifications or form of a
public-private agreement;
(6) to interview proposers; and
(7) any other rights available to the responsible
public entity transportation agency under applicable law
and regulations.
(l) If a proposal is approved, the responsible public
entity transportation agency shall execute the public-private
agreement, publish notice of the execution of the
public-private agreement on its website and in a newspaper or
newspapers of general circulation within the county or
counties in which the transportation project is to be located,
and publish the entire agreement on its website. Any action to
contest the validity of a public-private agreement entered
into under this Act must be brought no later than 60 days after
the date of publication of the notice of execution of the
public-private agreement.
(m) For any transportation project with an estimated
construction cost of over $50,000,000, the responsible public
entity transportation agency may also require the approved
proposer to pay the costs for an independent audit of any and
all traffic and cost estimates associated with the approved
proposal, as well as a review of all public costs and potential
liabilities to which taxpayers could be exposed (including
improvements to other transportation facilities that may be
needed as a result of the approved proposal, failure by the
approved proposer to reimburse the transportation agency for
services provided, and potential risk and liability in the
event the approved proposer defaults on the public-private
agreement or on bonds issued for the project). If required by
the responsible public entity transportation agency, this
independent audit must be conducted by an independent
consultant selected by the transportation agency, and all
information from the review must be fully disclosed.
(n) The responsible public entity transportation agency
may also apply for, execute, or endorse applications submitted
by private entities to obtain federal credit assistance for
qualifying projects developed or operated pursuant to this
Act.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.)
(630 ILCS 5/30)
Sec. 30. Interim agreements.
(a) Prior to or in connection with the negotiation of the
public-private agreement, the responsible public entity
transportation agency may enter into an interim agreement with
the approved proposer. Such interim agreement may:
(1) permit the approved proposer to commence
activities relating to a proposed project as the
responsible public entity transportation agency and the
approved proposer shall agree to and for which the
approved proposer may be compensated, including, but not
limited to, project planning, advance right-of-way
acquisition, design and engineering, environmental
analysis and mitigation, survey, conducting transportation
and revenue studies, and ascertaining the availability of
financing for the proposed facility or facilities;
(2) establish the process and timing of the exclusive
negotiation of a public-private agreement with an approved
proposer;
(3) require that in the event the responsible public
entity transportation agency determines not to proceed
with a project after the approved proposer and the
responsible public entity transportation agency have
executed an interim agreement, and thereby terminates the
interim agreement or declines to proceed with negotiation
of a public-private agreement with an approved proposer,
the responsible public entity transportation agency shall
pay to the approved proposer certain fees and costs
incurred by the approved proposer;
(4) establish the ownership in the State or in the
Authority of the concepts and designs in the event of
termination of the interim agreement;
(5) establish procedures for the selection of
professional design firms and subcontractors, which shall
include procedures consistent with the Architectural,
Engineering, and Land Surveying Qualifications Based
Selection Act for the selection of design professional
firms and may include, in the discretion of the
responsible public entity transportation agency,
procedures consistent with the low bid procurement
procedures outlined in the Illinois Procurement Code for
the selection of construction companies; and
(6) contain any other provisions related to any aspect
of the transportation project that the parties may deem
appropriate.
(b) A responsible public entity transportation agency may
enter into an interim agreement with multiple approved
proposers if the responsible public entity transportation
agency determines in writing that it is in the public interest
to do so.
(c) The approved proposer shall select firms that are
prequalified by the responsible public entity transportation
agency pursuant to Section 20 of the Architectural,
Engineering, and Land Surveying Qualifications Based Selection
Act to provide architectural, engineering, and land surveying
services to undertake activities related to the transportation
project.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/35)
Sec. 35. Public-private agreements.
(a) Unless undertaking actions otherwise permitted in an
interim agreement entered into under Section 30 of this Act,
before developing, financing, or operating the transportation
project, the approved proposer shall enter into a
public-private agreement with the transportation agency.
Subject to the requirements of this Act, a public-private
agreement may provide that the approved proposer, acting on
behalf of the responsible public entity transportation agency,
is partially or entirely responsible for any combination of
developing, financing, or operating the transportation project
under terms set forth in the public-private agreement.
(b) The public-private agreement may, as determined
appropriate by the responsible public entity transportation
agency for the particular transportation project, provide for
some or all of the following:
(1) Development, financing, and operation of the
transportation project under terms set forth in the
public-private agreement, in any form as deemed
appropriate by the responsible public entity
transportation agency, including, but not limited to, a
long-term concession and lease, a design-bid-build
agreement, a design-build agreement, a
design-build-maintain agreement, a design-build-finance
agreement, a design-build-operate-maintain agreement and a
design-build-finance-operate-maintain agreement.
(2) Delivery of performance and payment bonds or other
performance security determined suitable by the
responsible public entity transportation agency, including
letters of credit, United States bonds and notes, parent
guaranties, and cash collateral, in connection with the
development, financing, or operation of the transportation
project, in the forms and amounts set forth in the
public-private agreement or otherwise determined as
satisfactory by the responsible public entity
transportation agency to protect the responsible public
entity transportation agency and payment bond
beneficiaries who have a direct contractual relationship
with the contractor or a subcontractor of the contractor
to supply labor or material. The payment or performance
bond or alternative form of performance security is not
required for the portion of a public-private agreement
that includes only design, planning, or financing
services, the performance of preliminary studies, or the
acquisition of real property.
(3) Review of plans for any development or operation,
or both, of the transportation project by the responsible
public entity transportation agency.
(4) Inspection of any construction of or improvements
to the transportation project by the responsible public
entity transportation agency or another entity designated
by the responsible public entity transportation agency or
under the public-private agreement to ensure that the
construction or improvements conform to the standards set
forth in the public-private agreement or are otherwise
acceptable to the responsible public entity transportation
agency.
(5) Maintenance of:
(A) one or more policies of public liability
insurance (copies of which shall be filed with the
responsible public entity transportation agency
accompanied by proofs of coverage); or
(B) self-insurance;
each in form and amount as set forth in the public-private
agreement or otherwise satisfactory to the responsible
public entity transportation agency as reasonably
sufficient to insure coverage of tort liability to the
public and employees and to enable the continued operation
of the transportation project.
(6) Where operations are included within the
contractor's obligations under the public-private
agreement, monitoring of the maintenance practices of the
contractor by the responsible public entity transportation
agency or another entity designated by the responsible
public entity transportation agency or under the
public-private agreement and the taking of the actions the
responsible public entity transportation agency finds
appropriate to ensure that the transportation project is
properly maintained.
(7) Reimbursement to be paid to the responsible public
entity transportation agency as set forth in the
public-private agreement for services provided by the
responsible public entity transportation agency.
(8) Filing of appropriate financial statements and
reports as set forth in the public-private agreement or as
otherwise in a form acceptable to the responsible public
entity transportation agency on a periodic basis.
(9) Compensation or payments to the contractor.
Compensation or payments may include any or a combination
of the following:
(A) a base fee and additional fee for project
savings as the design-builder of a construction
project;
(B) a development fee, payable on a lump-sum
basis, progress payment basis, time and materials
basis, or another basis deemed appropriate by the
responsible public entity transportation agency;
(C) an operations fee, payable on a lump-sum
basis, time and material basis, periodic basis, or
another basis deemed appropriate by the responsible
public entity transportation agency;
(D) some or all of the revenues, if any, arising
out of operation of the transportation project;
(E) a maximum rate of return on investment or
return on equity or a combination of the two;
(F) in-kind services, materials, property,
equipment, or other items;
(G) compensation in the event of any termination;
(H) availability payments or similar arrangements
whereby payments are made to the contractor pursuant
to the terms set forth in the public-private agreement
or related agreements; or
(I) other compensation set forth in the
public-private agreement or otherwise deemed
appropriate by the responsible public entity
transportation agency.
(10) Compensation or payments to the responsible
public entity transportation agency, if any. Compensation
or payments may include any or a combination of the
following:
(A) a concession or lease payment or other fee,
which may be payable upfront or on a periodic basis or
on another basis deemed appropriate by the responsible
public entity transportation agency;
(B) sharing of revenues, if any, from the
operation of the transportation project;
(C) sharing of project savings from the
construction of the transportation project;
(D) payment for any services, materials,
equipment, personnel, or other items provided by the
responsible public entity transportation agency to the
contractor under the public-private agreement or in
connection with the transportation project; or
(E) other compensation set forth in the
public-private agreement or otherwise deemed
appropriate by the responsible public entity
transportation agency.
(11) The date and terms of termination of the
contractor's authority and duties under the public-private
agreement and the circumstances under which the
contractor's authority and duties may be terminated prior
to that date.
(12) Reversion of the transportation project to the
responsible public entity transportation agency at the
termination or expiration of the public-private agreement.
(13) Rights and remedies of the responsible public
entity transportation agency in the event that the
contractor defaults or otherwise fails to comply with the
terms of the public-private agreement.
(14) Procedures for the selection of professional
design firms and subcontractors, which shall include
procedures consistent with the Architectural, Engineering,
and Land Surveying Qualifications Based Selection Act for
the selection of professional design firms and may
include, in the discretion of the responsible public
entity transportation agency, procedures consistent with
the low bid procurement procedures outlined in the
Illinois Procurement Code for the selection of
construction companies.
(15) Other terms, conditions, and provisions that the
responsible public entity transportation agency believes
are in the public interest.
(c) The responsible public entity transportation agency
may fix and revise the amounts of user fees that a contractor
may charge and collect for the use of any part of a
transportation project in accordance with the public-private
agreement. In fixing the amounts, the responsible public
entity transportation agency may establish maximum amounts for
the user fees and may provide that the maximums and any
increases or decreases of those maximums shall be based upon
the indices, methodologies, or other factors the responsible
public entity transportation agency considers appropriate.
(d) A public-private agreement may:
(1) authorize the imposition of tolls in any manner
determined appropriate by the responsible public entity
transportation agency for the transportation project;
(2) authorize the contractor to adjust the user fees
for the use of the transportation project, so long as the
amounts charged and collected by the contractor do not
exceed the maximum amounts established by the responsible
public entity transportation agency under the
public-private agreement;
(3) provide that any adjustment by the contractor
permitted under paragraph (2) of this subsection (d) may
be based on the indices, methodologies, or other factors
described in the public-private agreement or approved by
the responsible public entity transportation agency;
(4) authorize the contractor to charge and collect
user fees through methods, including, but not limited to,
automatic vehicle identification systems, electronic toll
collection systems, and, to the extent permitted by law,
global positioning system-based, photo-based, or
video-based toll collection enforcement, provided that to
the maximum extent feasible the contractor will (i)
utilize open road tolling methods that allow payment of
tolls at highway speeds and (ii) comply with United States
Department of Transportation requirements and best
practices with respect to tolling methods; and
(5) authorize the collection of user fees by a third
party.
(e) In the public-private agreement, the responsible
public entity transportation agency may agree to make grants
or loans for the development or operation, or both, of the
transportation project from time to time from amounts received
from the federal government or any agency or instrumentality
of the federal government or from any State or local agency.
(f) Upon the termination or expiration of the
public-private agreement, including a termination for default,
the responsible public entity transportation agency shall have
the right to take over the transportation project and to
succeed to all of the right, title, and interest in the
transportation project. Upon termination or expiration of the
public-private agreement relating to a transportation project
undertaken by the Department, all real property acquired as a
part of the transportation project shall be held in the name of
the State of Illinois. Upon termination or expiration of the
public-private agreement relating to a transportation project
undertaken by the Authority, all real property acquired as a
part of the transportation project shall be held in the name of
the Authority.
(g) If a responsible public entity transportation agency
elects to take over a transportation project as provided in
subsection (f) of this Section, the responsible public entity
transportation agency may do the following:
(1) develop, finance, or operate the project,
including through a public-private agreement entered into
in accordance with this Act; or
(2) impose, collect, retain, and use user fees, if
any, for the project.
(h) If a responsible public entity transportation agency
elects to take over a transportation project as provided in
subsection (f) of this Section, the responsible public entity
transportation agency may use the revenues, if any, for any
lawful purpose, including to:
(1) make payments to individuals or entities in
connection with any financing of the transportation
project, including through a public-private agreement
entered into in accordance with this Act;
(2) permit a contractor to receive some or all of the
revenues under a public-private agreement entered into
under this Act;
(3) pay development costs of the project;
(4) pay current operation costs of the project or
facilities;
(5) pay the contractor for any compensation or payment
owing upon termination; and
(6) pay for the development, financing, or operation
of any other project or projects the responsible public
entity transportation agency deems appropriate.
(i) The full faith and credit of the State or any political
subdivision of the State or the responsible public entity
transportation agency is not pledged to secure any financing
of the contractor by the election to take over the
transportation project. Assumption of development or
operation, or both, of the transportation project does not
obligate the State or any political subdivision of the State
or the responsible public entity transportation agency to pay
any obligation of the contractor.
(j) The responsible public entity transportation agency
may enter into a public-private agreement with multiple
approved proposers if the responsible public entity
transportation agency determines in writing that it is in the
public interest to do so.
(k) A public-private agreement shall not include any
provision under which the responsible public entity
transportation agency agrees to restrict or to provide
compensation to the private entity for the construction or
operation of a competing transportation facility during the
term of the public-private agreement.
(l) With respect to a public-private agreement entered
into by the Department, the Department shall certify in its
State budget request to the Governor each year the amount
required by the Department during the next State fiscal year
to enable the Department to make any payment obligated to be
made by the Department pursuant to that public-private
agreement, and the Governor shall include that amount in the
State budget submitted to the General Assembly.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.)
(630 ILCS 5/40)
Sec. 40. Development and operations standards for
transportation projects.
(a) The plans and specifications, if any, for each project
developed under this Act must comply with:
(1) the responsible public entity's transportation
agency's standards for other projects of a similar nature
or as otherwise provided in the public-private agreement;
(2) the Professional Engineering Practice Act of 1989,
the Structural Engineering Practice Act of 1989, the
Illinois Architecture Practice Act of 1989, the
requirements of Section 30-22 of the Illinois Procurement
Code as they apply to responsible bidders, and the
Illinois Professional Land Surveyor Act of 1989; and
(3) any other applicable State or federal standards.
(b) Each highway project constructed or operated under
this Act is considered to be part of:
(1) the State highway system for purposes of
identification, maintenance standards, and enforcement of
traffic laws if the highway project is under the
jurisdiction of the Department; or
(2) the toll highway system for purposes of
identification, maintenance standards, and enforcement of
traffic laws if the highway project is under the
jurisdiction of the Authority.
(c) Any unit of local government or State agency may enter
into agreements with the contractor for maintenance or other
services under this Act.
(d) Any electronic toll collection system used on a toll
highway, bridge, or tunnel as part of a transportation project
must be compatible with the electronic toll collection system
used by the Authority. The Authority is authorized to
construct, operate, and maintain any electronic toll
collection system used on a toll highway, bridge, or tunnel as
part of a transportation project pursuant to an agreement with
the responsible public entity transportation agency or the
contractor responsible for the transportation project. All
private entities and public agencies shall have an equal
opportunity to contract with the Authority to provide
construction, operation, and maintenance services. In
addition, during the procurement of a public-private
agreement, these construction, operation, and maintenance
services shall be available under identical terms to each
private entity participating in the procurement. To the extent
that a public-private agreement or an agreement with a public
agency under subsection (c) of Section 20 of this Act
authorizes tolling, the responsible public entities
transportation agencies and any contractor under a
public-private partnership or a public agency under an
agreement pursuant to subsection (c) of Section 20 of this Act
shall comply with subsection (a-5) of Section 10 of the Toll
Highway Act as it relates to toll enforcement.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.)
(630 ILCS 5/45)
Sec. 45. Financial arrangements.
(a) The responsible public entity transportation agency
may do any combination of applying for, executing, or
endorsing applications submitted by private entities to obtain
federal, State, or local credit assistance for transportation
projects developed, financed, or operated under this Act,
including loans, lines of credit, and guarantees.
(b) The responsible public entity transportation agency
may take any action to obtain federal, State, or local
assistance for a transportation project that serves the public
purpose of this Act and may enter into any contracts required
to receive the federal assistance. The responsible public
entity transportation agency may determine that it serves the
public purpose of this Act for all or any portion of the costs
of a transportation project to be paid, directly or
indirectly, from the proceeds of a grant or loan, line of
credit, or loan guarantee made by a local, State, or federal
government or any agency or instrumentality of a local, State,
or federal government. Such assistance may include, but not be
limited to, federal credit assistance pursuant to the
Transportation Infrastructure Finance and Innovation Act
(TIFIA).
(c) The responsible public entity transportation agency
may agree to make grants or loans for the development,
financing, or operation of a transportation project from time
to time, from amounts received from the federal, State, or
local government or any agency or instrumentality of the
federal, State, or local government.
(d) Any financing of a transportation project may be in
the amounts and upon the terms and conditions that are
determined by the parties to the public-private agreement.
(e) For the purpose of financing a transportation project,
the contractor and the responsible public entity
transportation agency may do the following:
(1) propose to use any and all revenues that may be
available to them;
(2) enter into grant agreements;
(3) access any other funds available to the
responsible public entity transportation agency; and
(4) accept grants from the responsible public entity
transportation agency or other public or private agency or
entity.
(f) For the purpose of financing a transportation project,
public funds, including public or private pension funds, may
be used and mixed and aggregated with funds provided by or on
behalf of the contractor or other private entities.
(g) For the purpose of financing a transportation project,
each responsible public entity transportation agency is
authorized to do any combination of applying for, executing,
or endorsing applications for an allocation of tax-exempt bond
financing authorization provided by Section 142(m) of the
United States Internal Revenue Code, as well as financing
available under any other federal law or program.
(h) Any bonds, debt, or other securities or other
financing issued by or on behalf of a contractor for the
purposes of a project undertaken under this Act shall not be
deemed to constitute a debt of the State or any political
subdivision of the State or a pledge of the faith and credit of
the State or any political subdivision of the State.
(Source: P.A. 97-502, eff. 8-23-11; 97-858, eff. 7-27-12.)
(630 ILCS 5/50)
Sec. 50. Acquisition of property.
(a) The responsible public entity transportation agency
may exercise any power of condemnation or eminent domain,
including quick-take powers, that it has under law, including,
in the case of the Department, all powers for acquisition of
property rights granted it in the Illinois Highway Code, for
the purpose of acquiring any lands or estates or interests in
land for a transportation project to the extent provided in
the public-private agreement or otherwise to the extent that
the responsible public entity transportation agency finds that
the action serves the public purpose of this Act and deems it
appropriate in the exercise of its powers under this Act.
(b) The responsible public entity transportation agency
and a contractor may enter into the leases, licenses,
easements, and other grants of property interests that the
responsible public entity transportation agency determines
necessary to carry out this Act.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/55)
Sec. 55. Labor.
(a) A public-private agreement related to a transportation
project pertaining to the building, altering, repairing,
maintaining, improving, or demolishing a transportation
facility shall require the contractor and all subcontractors
to comply with the requirements of Section 30-22 of the
Illinois Procurement Code as they apply to responsible bidders
and to present satisfactory evidence of that compliance to the
responsible public entity transportation agency, 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.
(b) A public-private agreement related to a transportation
project pertaining to a new transportation facility shall
require the contractor to enter into a project labor agreement
utilized by the Department.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/65)
Sec. 65. Term of agreement; reversion of property to
responsible public entity transportation agency.
(a) The term of a public-private agreement, including all
extensions, may not exceed 99 years.
(b) The responsible public entity transportation agency
shall terminate the contractor's authority and duties under
the public-private agreement on the date set forth in the
public-private agreement.
(c) Upon termination of the public-private agreement, the
authority and duties of the contractor under this Act cease,
except for those duties and obligations that extend beyond the
termination, as set forth in the public-private agreement, and
all interests in the transportation facility shall revert to
the responsible public entity transportation agency.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/70)
Sec. 70. Additional powers of responsible public entities
transportation agencies with respect to transportation
projects.
(a) Each responsible public entity transportation agency
may exercise any powers provided under this Act in
participation or cooperation with any governmental entity and
enter into any contracts to facilitate that participation or
cooperation without compliance with any other statute. Each
responsible public entity transportation agency shall
cooperate with each other and with other governmental entities
in carrying out transportation projects under this Act.
(b) Each responsible public entity transportation agency
may make and enter into all contracts and agreements necessary
or incidental to the performance of the responsible public
entity's transportation agency's duties and the execution of
the responsible public entity's transportation agency's powers
under this Act. Except as otherwise required by law, these
contracts or agreements are not subject to any approvals other
than the approval of the responsible public entity
transportation agency and may be for any term of years and
contain any terms that are considered reasonable by the
responsible public entity transportation agency.
(c) Each responsible public entity transportation agency
may pay the costs incurred under a public-private agreement
entered into under this Act from any funds available to the
responsible public entity transportation agency under this Act
or any other statute.
(d) A responsible public entity transportation agency or
other State agency may not take any action that would impair a
public-private agreement entered into under this Act.
(e) Each responsible public entity transportation agency
may enter into an agreement between and among the contractor,
the responsible public entity transportation agency, and the
Illinois State Police concerning the provision of law
enforcement assistance with respect to a transportation
project that is the subject of a public-private agreement
under this Act.
(f) Each responsible public entity transportation agency
is authorized to enter into arrangements with the Illinois
State Police related to costs incurred in providing law
enforcement assistance under this Act.
(Source: P.A. 102-538, eff. 8-20-21.)
(630 ILCS 5/80)
Sec. 80. Powers liberally construed. The powers conferred
by this Act shall be liberally construed in order to
accomplish their purposes and shall be in addition and
supplemental to the powers conferred by any other law. If any
other law or rule is inconsistent with this Act, this Act is
controlling as to any public-private agreement entered into
under this Act. To implement the powers conferred by this Act,
the responsible public entity transportation agency may
establish rules and procedures for the procurement of a
public-private agreement under this Act. Nothing contained in
this Act is intended to supersede applicable federal law or to
foreclose the use or potential use of federal funds. In the
event any provision of this Act is inconsistent with
applicable federal law or would have the effect of foreclosing
the use or potential use of federal funds, the applicable
federal law or funding condition shall prevail, but only to
the extent of such inconsistency.
(Source: P.A. 97-502, eff. 8-23-11.)
(630 ILCS 5/85)
Sec. 85. Full and complete authority. This Act contains
full and complete authority for agreements and leases with
private entities to carry out the activities described in this
Act. Except as otherwise required by law, no procedure,
proceedings, publications, notices, consents, approvals,
orders, or acts by the responsible public entity
transportation agency or any other State or local agency or
official are required to enter into an agreement or lease.
(Source: P.A. 97-502, eff. 8-23-11.)
ARTICLE 95. LICENSING OF SOFTWARE APPLICATIONS
Section 95-5. The Illinois Procurement Code is amended by
adding Section 20-57 as follows:
(30 ILCS 500/20-57 new)
Sec. 20-57. Software licensing contracts. A contract
entered into by a public agency for the licensing of software
applications designed to run on generally available desktop or
server hardware may not limit the public agency's ability to
install or run the software on any of the public agency's
hardware.
ARTICLE 97. PUBLIC CONSTRUCTION BONDS
Section 97-5. The Public Construction Bond Act is amended
by changing Section 1 as follows:
(30 ILCS 550/1) (from Ch. 29, par. 15)
Sec. 1. Except as otherwise provided by this Act, until
January 1, 2029, all officials, boards, commissions, or agents
of this State, or of any political subdivision thereof, in
making contracts for public work of any kind costing over
$150,000 $50,000 to be performed for the State, or of any
political subdivision thereof, shall require every contractor
for the work to furnish, supply and deliver a bond to the
State, or to the political subdivision thereof entering into
the contract, as the case may be, with good and sufficient
sureties. The surety on the bond shall be a company that is
licensed by the Department of Insurance authorizing it to
execute surety bonds and the company shall have a financial
strength rating of at least A- as rated by A.M. Best Company,
Inc., Moody's Investors Service, Standard & Poor's
Corporation, or a similar rating agency. The amount of the
bond shall be fixed by the officials, boards, commissions,
commissioners or agents, and the bond, among other conditions,
shall be conditioned for the completion of the contract, for
the payment of material, apparatus, fixtures, and machinery
used in the work and for all labor performed in the work,
whether by subcontractor or otherwise.
Until January 1, 2029, when making contracts for public
works to be constructed, the Department of Transportation and
the Illinois State Toll Highway Authority shall require every
contractor for those works to furnish, supply, and deliver a
bond to the Department or the Authority, as the case may be,
with good and sufficient sureties only if the public works
contract will cost more than $500,000. The Department of
Transportation and the Illinois State Toll Highway Authority
shall publicly display the following information by website or
annual report and shall provide that information to interested
parties upon request:
(1) a list of each of its defaulted public works
contracts, including the value of the award, the adjusted
contract value, and the amount remaining unpaid by the
Department or Authority, as applicable;
(2) the number and the aggregate amount of payment
claims made under the Mechanics Lien Act along with the
number of contracts in which payment claims are made under
the Mechanics Lien Act;
(3) for each of its public improvement contracts,
regardless of the contract value, the aggregate annual
revenue of the contractor derived from contracts with the
State;
(4) for each of its public works contracts, regardless
of contract value, the identity of the surety providing
the contract bond, payment and performance bond, or both;
and
(5) for each of its public works contracts, regardless
of the bond threshold, a list of bidders for each public
works contract, and the amount bid by each bidder.
Until January 1, 2029, local governmental units may
require a bond, by ordinance or resolution, for public works
contracts valued at $150,000 or less.
On and after January 1, 2029, all officials, boards,
commissions, or agents of this State, or of any political
subdivision thereof, in making contracts for public work of
any kind costing over $50,000 to be performed for the State, or
of any political subdivision thereof, shall require every
contractor for the work to furnish, supply and deliver a bond
to the State, or to the political subdivision thereof entering
into the contract, as the case may be, with good and sufficient
sureties. The surety on the bond shall be a company that is
licensed by the Department of Insurance authorizing it to
execute surety bonds and the company shall have a financial
strength rating of at least A- as rated by A.M. Best Company,
Inc., Moody's Investors Service, Standard & Poor's
Corporation, or a similar rating agency. The amount of the
bond shall be fixed by the officials, boards, commissions,
commissioners or agents, and the bond, among other conditions,
shall be conditioned for the completion of the contract, for
the payment of material, apparatus, fixtures, and machinery
used in the work and for all labor performed in the work,
whether by subcontractor or otherwise.
If the contract is for emergency repairs as provided in
the Illinois Procurement Code, proof of payment for all labor,
materials, apparatus, fixtures, and machinery may be furnished
in lieu of the bond required by this Section.
Each such bond is deemed to contain the following
provisions whether such provisions are inserted in such bond
or not:
"The principal and sureties on this bond agree that all
the undertakings, covenants, terms, conditions and agreements
of the contract or contracts entered into between the
principal and the State or any political subdivision thereof
will be performed and fulfilled and to pay all persons, firms
and corporations having contracts with the principal or with
subcontractors, all just claims due them under the provisions
of such contracts for labor performed or materials furnished
in the performance of the contract on account of which this
bond is given, when such claims are not satisfied out of the
contract price of the contract on account of which this bond is
given, after final settlement between the officer, board,
commission or agent of the State or of any political
subdivision thereof and the principal has been made.".
Each bond securing contracts between the Capital
Development Board or any board of a public institution of
higher education and a contractor shall contain the following
provisions, whether the provisions are inserted in the bond or
not:
"Upon the default of the principal with respect to
undertakings, covenants, terms, conditions, and agreements,
the termination of the contractor's right to proceed with the
work, and written notice of that default and termination by
the State or any political subdivision to the surety
("Notice"), the surety shall promptly remedy the default by
taking one of the following actions:
(1) The surety shall complete the work pursuant to a
written takeover agreement, using a completing contractor
jointly selected by the surety and the State or any
political subdivision; or
(2) The surety shall pay a sum of money to the obligee,
up to the penal sum of the bond, that represents the
reasonable cost to complete the work that exceeds the
unpaid balance of the contract sum.
The surety shall respond to the Notice within 15 working
days of receipt indicating the course of action that it
intends to take or advising that it requires more time to
investigate the default and select a course of action. If the
surety requires more than 15 working days to investigate the
default and select a course of action or if the surety elects
to complete the work with a completing contractor that is not
prepared to commence performance within 15 working days after
receipt of Notice, and if the State or any political
subdivision determines it is in the best interest of the State
to maintain the progress of the work, the State or any
political subdivision may continue to work until the
completing contractor is prepared to commence performance.
Unless otherwise agreed to by the procuring agency, in no case
may the surety take longer than 30 working days to advise the
State or political subdivision on the course of action it
intends to take. The surety shall be liable for reasonable
costs incurred by the State or any political subdivision to
maintain the progress to the extent the costs exceed the
unpaid balance of the contract sum, subject to the penal sum of
the bond.".
The surety bond required by this Section may be acquired
from the company, agent or broker of the contractor's choice.
The bond and sureties shall be subject to the right of
reasonable approval or disapproval, including suspension, by
the State or political subdivision thereof concerned. Except
as otherwise provided in this Section, in the case of State
construction contracts, a contractor shall not be required to
post a cash bond or letter of credit in addition to or as a
substitute for the surety bond required by this Section.
Prior to the completion of 50% of the contract for public
works, a local governmental unit may not withhold retainage
from any payment to a contractor who furnishes the bond or bond
substitute required by this Act in an amount in excess of 10%
of any payment made prior to the date of completion of 50% of
the contract for public works. When a contract for public
works is 50% complete, the local governmental unit shall
reduce the retainage so that no more than 5% is held. After the
contract is 50% complete, no more than 5% of the amount of any
subsequent payments made under the contract for public works
may be withheld as retainage.
Prior to the completion of 50% of the contract for public
works, the contractor and their respective subcontractors
shall not withhold from their subcontractors retainage in
excess of 10% of any payment made prior to the date of
completion of 50% of the contract for public works. When the
contract for public works is 50% complete, the contractor and
its subcontractors shall reduce the retainage so that no more
than 5% is withheld from their respective subcontractors.
After the contract is 50% complete, the contractor and its
subcontractors shall not withhold more than 5% of the amount
of any subsequent payments made under the contract to their
respective subcontractors.
When other than motor fuel tax funds, federal-aid funds,
or other funds received from the State are used, a political
subdivision may allow the contractor to provide a
non-diminishing irrevocable bank letter of credit, in lieu of
the bond required by this Section, on contracts under $100,000
to comply with the requirements of this Section. Any such bank
letter of credit shall contain all provisions required for
bonds by this Section.
In order to reduce barriers to entry for diverse and small
businesses, the Department of Transportation may implement a
5-year pilot program to allow a contractor to provide a
non-diminishing irrevocable bank letter of credit in lieu of
the bond required by this Section on contracts under $500,000.
Projects selected by the Department of Transportation for this
pilot program must be classified by the Department as low-risk
scope of work contracts. The Department shall adopt rules to
define the criteria for pilot project selection and
implementation of the pilot program.
In For the purposes of this Section: , the terms
"material"
"Local governmental unit" has the meaning ascribed to it
in Section 2 of the Local Government Prompt Payment Act.
"Material", "labor", "apparatus", "fixtures", and
"machinery" include those rented items that are on the
construction site and those rented tools that are used or
consumed on the construction site in the performance of the
contract on account of which the bond is given.
(Source: P.A. 101-65, eff. 1-1-20; 102-968, eff. 1-1-23.)
ARTICLE 98 VENDOR CONTRIBUTION LIMITS AND REGISTRATION
REQUIREMENTS
Section 98-5. The Illinois Procurement Code is amended by
changing Sections 20-160 and 50-37 as follows:
(30 ILCS 500/20-160)
Sec. 20-160. Business entities; certification;
registration with the State Board of Elections.
(a) For purposes of this Section, the terms "business
entity", "contract", "State contract", "contract with a State
agency", "State agency", "affiliated entity", and "affiliated
person" have the meanings ascribed to those terms in Section
50-37.
(b) Every bid and offer submitted to and every contract
executed by the State on or after January 1, 2009 (the
effective date of Public Act 95-971) and every submission to a
vendor portal shall contain (1) a certification by the bidder,
offeror, vendor, or contractor that either (i) the bidder,
offeror, vendor, or contractor is not required to register as
a business entity with the State Board of Elections pursuant
to this Section or (ii) the bidder, offeror, vendor, or
contractor has registered as a business entity with the State
Board of Elections and acknowledges a continuing duty to
update the registration and (2) a statement that the contract
is voidable under Section 50-60 for the bidder's, offeror's,
vendor's, or contractor's failure to comply with this Section.
(c) Each business entity (i) whose aggregate pending bids
and proposals on State contracts annually total more than
$50,000, (ii) whose aggregate pending bids and proposals on
State contracts combined with the business entity's aggregate
annual total value of State contracts exceed $50,000, or (iii)
whose contracts with State agencies, in the aggregate,
annually total more than $50,000 shall register with the State
Board of Elections in accordance with Section 9-35 of the
Election Code. A business entity required to register under
this subsection due to item (i) or (ii) has a continuing duty
to ensure that the registration is accurate during the period
beginning on the date of registration and ending on the day
after the date the contract is awarded; any change in
information must be reported to the State Board of Elections 5
business days following such change or no later than a day
before the contract is awarded, whichever date is earlier. A
business entity required to register under this subsection due
to item (iii) has a continuing duty to ensure that the
registration is accurate in accordance with subsection (e).
(d) Any business entity, not required under subsection (c)
to register, whose aggregate pending bids and proposals on
State contracts annually total more than $50,000, or whose
aggregate pending bids and proposals on State contracts
combined with the business entity's aggregate annual total
value of State contracts exceed $50,000, shall register with
the State Board of Elections in accordance with Section 9-35
of the Election Code prior to submitting to a State agency the
bid or proposal whose value causes the business entity to fall
within the monetary description of this subsection. A business
entity required to register under this subsection has a
continuing duty to ensure that the registration is accurate
during the period beginning on the date of registration and
ending on the day after the date the contract is awarded. Any
change in information must be reported to the State Board of
Elections within 5 business days following such change or no
later than a day before the contract is awarded, whichever
date is earlier.
(e) A business entity whose contracts with State agencies,
in the aggregate, annually total more than $50,000 must
maintain its registration under this Section and has a
continuing duty to ensure that the registration is accurate
for the duration of the term of office of the incumbent
officeholder awarding the contracts or for a period of 2 years
following the expiration or termination of the contracts,
whichever is longer. A business entity, required to register
under this subsection, has a continuing duty to report any
changes on a quarterly basis to the State Board of Elections
within 14 calendar days following the last day of January,
April, July, and October of each year. Any update pursuant to
this paragraph that is received beyond that date is presumed
late and the civil penalty authorized by subsection (e) of
Section 9-35 of the Election Code may be assessed.
Also, if a business entity required to register under this
subsection has a pending bid or offer, any change in
information shall be reported to the State Board of Elections
within 7 calendar days following such change or no later than a
day before the contract is awarded, whichever date is earlier.
(f) A business entity's continuing duty under this Section
to ensure the accuracy of its registration includes the
requirement that the business entity notify the State Board of
Elections of any change in information, including, but not
limited to, changes of affiliated entities or affiliated
persons.
(g) For any bid or offer for a contract with a State agency
by a business entity required to register under this Section,
the chief procurement officer shall verify that the business
entity is required to register under this Section and is in
compliance with the registration requirements on the date the
bid or offer is due. A chief procurement officer shall not
accept a bid or offer if the business entity is not in
compliance with the registration requirements as of the date
bids or offers are due. Upon discovery of noncompliance with
this Section, 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, a chief procurement officer may provide the
bidder or offeror 5 business days to achieve compliance. A
chief procurement officer may extend the time to prove
compliance by as long as necessary in the event that there is a
failure within the State Board of Elections' registration
system.
(h) A registration, and any changes to a registration,
must include the business entity's verification of accuracy
and subjects the business entity to the penalties of the laws
of this State for perjury.
In addition to any penalty under Section 9-35 of the
Election Code, intentional, willful, or material failure to
disclose information required for registration shall render
the contract, bid, offer, or other procurement relationship
voidable by the chief procurement officer if he or she deems it
to be in the best interest of the State of Illinois.
(i) This Section applies regardless of the method of
source selection used in awarding the contract.
(Source: P.A. 100-43, eff. 8-9-17; 101-81, eff. 7-12-19.)
(30 ILCS 500/50-37)
Sec. 50-37. Prohibition of political contributions.
(a) As used in this Section:
The terms "contract", "State contract", and "contract
with a State agency" each mean any contract, as defined in
this Code, between a business entity and a State agency
let or awarded pursuant to this Code. The terms
"contract", "State contract", and "contract with a State
agency" do not include cost reimbursement contracts;
purchase of care agreements as defined in Section 1-15.68
of this Code; contracts for projects eligible for full or
partial federal-aid funding reimbursements authorized by
the Federal Highway Administration; grants, including but
are not limited to grants for job training or
transportation; and grants, loans, or tax credit
agreements for economic development purposes.
"Contribution" means a contribution as defined in
Section 9-1.4 of the Election Code.
"Declared candidate" means a person who has filed a
statement of candidacy and petition for nomination or
election in the principal office of the State Board of
Elections.
"State agency" means and includes all boards,
commissions, agencies, institutions, authorities, and
bodies politic and corporate of the State, created by or
in accordance with the Illinois Constitution or State
statute, of the executive branch of State government and
does include colleges, universities, public employee
retirement systems, 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 Illinois Board of Higher
Education.
"Officeholder" means the Governor, Lieutenant
Governor, Attorney General, Secretary of State,
Comptroller, or Treasurer. The Governor shall be
considered the officeholder responsible for awarding all
contracts by all officers and employees of, and potential
contractors and others doing business with, executive
branch State agencies under the jurisdiction of the
Executive Ethics Commission and not within the
jurisdiction of the Attorney General, the Secretary of
State, the Comptroller, or the Treasurer.
"Sponsoring entity" means a sponsoring entity as
defined in Section 9-3 of the Election Code.
"Affiliated person" means (i) any person with any
ownership interest or distributive share of the bidding or
contracting business entity in excess of 7.5%, (ii)
executive employees of the bidding or contracting business
entity, and (iii) the spouse of any such persons.
"Affiliated person" does not include a person prohibited
by federal law from making contributions or expenditures
in connection with a federal, state, or local election.
"Affiliated entity" means (i) any corporate parent and
each operating subsidiary of the bidding or contracting
business entity, (ii) each operating subsidiary of the
corporate parent of the bidding or contracting business
entity, (iii) any organization recognized by the United
States Internal Revenue Service as a tax-exempt
organization described in Section 501(c) of the Internal
Revenue Code of 1986 (or any successor provision of
federal tax law) established by the bidding or contracting
business entity, any affiliated entity of that business
entity, or any affiliated person of that business entity,
or (iv) any political committee for which the bidding or
contracting business entity, or any 501(c) organization
described in item (iii) related to that business entity,
is the sponsoring entity. "Affiliated entity" does not
include an entity prohibited by federal law from making
contributions or expenditures in connection with a
federal, state, or local election.
"Business entity" means any entity doing business for
profit, whether organized as a corporation, partnership,
sole proprietorship, limited liability company or
partnership, or otherwise.
"Executive employee" means (i) the President,
Chairman, 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; and (ii) 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. A regular salary that is paid
irrespective of the award or payment of a contract with a
State agency shall not constitute "compensation" under
item (ii) of this definition. "Executive employee" does
not include any person prohibited by federal law from
making contributions or expenditures in connection with a
federal, state, or local election.
(b) Any business entity whose contracts with State
agencies, in the aggregate, annually total more than $50,000,
and any affiliated entities or affiliated persons of such
business entity, are prohibited from making any contributions
to any political committees established to promote the
candidacy of (i) the officeholder responsible for awarding the
contracts or (ii) any other declared candidate for that
office. This prohibition shall be effective for the duration
of the term of office of the incumbent officeholder awarding
the contracts or for a period of 2 years following the
expiration or termination of the contracts, whichever is
longer.
(c) Any business entity whose aggregate pending bids and
offers on State contracts total more than $50,000, or whose
aggregate pending bids and offers on State contracts combined
with the business entity's aggregate annual total value of
State contracts exceed $50,000, and any affiliated entities or
affiliated persons of such business entity, are prohibited
from making any contributions to any political committee
established to promote the candidacy of the officeholder
responsible for awarding the contract on which the business
entity has submitted a bid or offer during the period
beginning on the date the invitation for bids, request for
proposals, or any other procurement opportunity is issued and
ending on the day after the date the contract is awarded.
(c-5) For the purposes of the prohibitions under
subsections (b) and (c) of this Section, (i) any contribution
made to a political committee established to promote the
candidacy of the Governor or a declared candidate for the
office of Governor shall also be considered as having been
made to a political committee established to promote the
candidacy of the Lieutenant Governor, in the case of the
Governor, or the declared candidate for Lieutenant Governor
having filed a joint petition, or write-in declaration of
intent, with the declared candidate for Governor, as
applicable, and (ii) any contribution made to a political
committee established to promote the candidacy of the
Lieutenant Governor or a declared candidate for the office of
Lieutenant Governor shall also be considered as having been
made to a political committee established to promote the
candidacy of the Governor, in the case of the Lieutenant
Governor, or the declared candidate for Governor having filed
a joint petition, or write-in declaration of intent, with the
declared candidate for Lieutenant Governor, as applicable.
(d) All contracts between State agencies and a business
entity that violate subsection (b) or (c) shall be voidable
under Section 50-60. If a business entity violates subsection
(b) 3 or more times within a 36-month period, then all
contracts between State agencies and that business entity
shall be void, and that business entity shall not bid or
respond to any invitation to bid or request for proposals from
any State agency or otherwise enter into any contract with any
State agency for 3 years from the date of the last violation. A
notice of each violation and the penalty imposed shall be
published in both the Procurement Bulletin and the Illinois
Register.
(e) Any political committee that has received a
contribution in violation of subsection (b) or (c) shall pay
an amount equal to the value of the contribution to the State
no more than 30 calendar days after notice of the violation
concerning the contribution appears in the Illinois Register.
Payments received by the State pursuant to this subsection
shall be deposited into the general revenue fund.
(Source: P.A. 97-411, eff. 8-16-11; 98-1076, eff. 1-1-15.)
ARTICLE 100. LAND MAINTENANCE ACTIVITY PROJECTS
Section 100-5. The Illinois Solid Waste Management Act is
amended by changing Section 3 as follows:
(415 ILCS 20/3) (from Ch. 111 1/2, par. 7053)
Sec. 3. State agency materials recycling program.
(a) All State agencies and local governments shall
consider whether compost products can be used in the land
maintenance activity project when soliciting and reviewing
bids for land maintenance activity projects. If compost
products can be used in the project, the State agency or local
government must use compost products unless the compost
products: responsible for the maintenance of public lands in
the State shall, to the maximum extent feasible, use compost
materials in all land maintenance activities which are to be
paid with public funds.
(1) are not available within a reasonable period of
time;
(2) do not comply with existing purchasing standards;
or
(3) do not comply with federal or State health and
safety standards.
Beginning January 1, 2024, the Department of
Transportation shall report each year to the General Assembly:
(i) the volume of compost used in State highway
construction projects;
(ii) the status of compost and compost-based products
used in State highway construction projects; and
(iii) recommendations to maximize the use of compost
as a recycled material in State highway construction
projects.
State agencies and local governments are encouraged to
give priority to purchasing compost products from companies
that produce compost products locally, are certified by a
nationally recognized organization, and produce compost
products that are derived from municipal solid waste compost
programs.
(a-5) All State agencies responsible for the maintenance
of public lands in the State shall review its procurement
specifications and policies to determine (1) if incorporating
compost materials will help reduce stormwater run-off and
increase infiltration of moisture in land maintenance
activities and (2) the current recycled content usage and
potential for additional recycled content usage by the Agency
in land maintenance activities and report to the General
Assembly by December 15, 2015.
(b) The Department of Central Management Services, in
coordination with the Agency, shall implement waste reduction
programs, including source separation and collection, for
office wastepaper, corrugated containers, newsprint and mixed
paper, in all State buildings as appropriate and feasible.
Such waste reduction programs shall be designed to achieve
waste reductions of at least 25% of all such waste by December
31, 1995, and at least 50% of all such waste by December 31,
2000. Any source separation and collection program shall
include, at a minimum, procedures for collecting and storing
recyclable materials, bins or containers for storing
materials, and contractual or other arrangements with buyers
of recyclable materials. If market conditions so warrant, the
Department of Central Management Services, in coordination
with the Agency, may modify programs developed pursuant to
this Section.
The Department of Commerce and Community Affairs (now
Department of Commerce and Economic Opportunity) shall conduct
waste categorization studies of all State facilities for
calendar years 1991, 1995 and 2000. Such studies shall be
designed to assist the Department of Central Management
Services to achieve the waste reduction goals established in
this subsection.
(c) Each State agency shall, upon consultation with the
Agency, periodically review its procurement procedures and
specifications related to the purchase of products or
supplies. Such procedures and specifications shall be modified
as necessary to require the procuring agency to seek out
products and supplies that contain recycled materials, and to
ensure that purchased products or supplies are reusable,
durable or made from recycled materials whenever economically
and practically feasible. In choosing among products or
supplies that contain recycled material, consideration shall
be given to products and supplies with the highest recycled
material content that is consistent with the effective and
efficient use of the product or supply.
(d) Wherever economically and practically feasible, the
Department of Central Management Services shall procure
recycled paper and paper products as follows:
(1) Beginning July 1, 1989, at least 10% of the total
dollar value of paper and paper products purchased by the
Department of Central Management Services shall be
recycled paper and paper products.
(2) Beginning July 1, 1992, at least 25% of the total
dollar value of paper and paper products purchased by the
Department of Central Management Services shall be
recycled paper and paper products.
(3) Beginning July 1, 1996, at least 40% of the total
dollar value of paper and paper products purchased by the
Department of Central Management Services shall be
recycled paper and paper products.
(4) Beginning July 1, 2000, at least 50% of the total
dollar value of paper and paper products purchased by the
Department of Central Management Services shall be
recycled paper and paper products.
(e) Paper and paper products purchased from private
vendors pursuant to printing contracts are not considered
paper products for the purposes of subsection (d). However,
the Department of Central Management Services shall report to
the General Assembly on an annual basis the total dollar value
of printing contracts awarded to private sector vendors that
included the use of recycled paper.
(f)(1) Wherever economically and practically feasible,
the recycled paper and paper products referred to in
subsection (d) shall contain postconsumer or recovered
paper materials as specified by paper category in this
subsection:
(i) Recycled high grade printing and writing paper
shall contain at least 50% recovered paper material.
Such recovered paper material, until July 1, 1994,
shall consist of at least 20% deinked stock or
postconsumer material; and beginning July 1, 1994,
shall consist of at least 25% deinked stock or
postconsumer material; and beginning July 1, 1996,
shall consist of at least 30% deinked stock or
postconsumer material; and beginning July 1, 1998,
shall consist of at least 40% deinked stock or
postconsumer material; and beginning July 1, 2000,
shall consist of at least 50% deinked stock or
postconsumer material.
(ii) Recycled tissue products, until July 1, 1994,
shall contain at least 25% postconsumer material; and
beginning July 1, 1994, shall contain at least 30%
postconsumer material; and beginning July 1, 1996,
shall contain at least 35% postconsumer material; and
beginning July 1, 1998, shall contain at least 40%
postconsumer material; and beginning July 1, 2000,
shall contain at least 45% postconsumer material.
(iii) Recycled newsprint, until July 1, 1994,
shall contain at least 40% postconsumer material; and
beginning July 1, 1994, shall contain at least 50%
postconsumer material; and beginning July 1, 1996,
shall contain at least 60% postconsumer material; and
beginning July 1, 1998, shall contain at least 70%
postconsumer material; and beginning July 1, 2000,
shall contain at least 80% postconsumer material.
(iv) Recycled unbleached packaging, until July 1,
1994, shall contain at least 35% postconsumer
material; and beginning July 1, 1994, shall contain at
least 40% postconsumer material; and beginning July 1,
1996, shall contain at least 45% postconsumer
material; and beginning July 1, 1998, shall contain at
least 50% postconsumer material; and beginning July 1,
2000, shall contain at least 55% postconsumer
material.
(v) Recycled paperboard, until July 1, 1994, shall
contain at least 80% postconsumer material; and
beginning July 1, 1994, shall contain at least 85%
postconsumer material; and beginning July 1, 1996,
shall contain at least 90% postconsumer material; and
beginning July 1, 1998, shall contain at least 95%
postconsumer material.
(2) For the purposes of this Section, "postconsumer
material" includes:
(i) paper, paperboard, and fibrous wastes from
retail stores, office buildings, homes, and so forth,
after the waste has passed through its end usage as a
consumer item, including used corrugated boxes, old
newspapers, mixed waste paper, tabulating cards, and
used cordage; and
(ii) all paper, paperboard, and fibrous wastes
that are diverted or separated from the municipal
solid waste stream.
(3) For the purposes of this Section, "recovered paper
material" includes:
(i) postconsumer material;
(ii) dry paper and paperboard waste generated
after completion of the papermaking process (that is,
those manufacturing operations up to and including the
cutting and trimming of the paper machine reel into
smaller rolls or rough sheets), including envelope
cuttings, bindery trimmings, and other paper and
paperboard waste resulting from printing, cutting,
forming, and other converting operations, or from bag,
box and carton manufacturing, and butt rolls, mill
wrappers, and rejected unused stock; and
(iii) finished paper and paperboard from obsolete
inventories of paper and paperboard manufacturers,
merchants, wholesalers, dealers, printers, converters,
or others.
(g) The Department of Central Management Services may
adopt regulations to carry out the provisions and purposes of
this Section.
(h) Every State agency shall, in its procurement
documents, specify that, whenever economically and practically
feasible, a product to be procured must consist, wholly or in
part, of recycled materials, or be recyclable or reusable in
whole or in part. When applicable, if state guidelines are not
already prescribed, State agencies shall follow USEPA
guidelines for federal procurement.
(i) All State agencies shall cooperate with the Department
of Central Management Services in carrying out this Section.
The Department of Central Management Services may enter into
cooperative purchasing agreements with other governmental
units in order to obtain volume discounts, or for other
reasons in accordance with the Governmental Joint Purchasing
Act, or in accordance with the Intergovernmental Cooperation
Act if governmental units of other states or the federal
government are involved.
(j) The Department of Central Management Services shall
submit an annual report to the General Assembly concerning its
implementation of the State's collection and recycled paper
procurement programs. This report shall include a description
of the actions that the Department of Central Management
Services has taken in the previous fiscal year to implement
this Section. This report shall be submitted on or before
November 1 of each year.
(k) The Department of Central Management Services, in
cooperation with all other appropriate departments and
agencies of the State, shall institute whenever economically
and practically feasible the use of re-refined motor oil in
all State-owned motor vehicles and the use of remanufactured
and retread tires whenever such use is practical, beginning no
later than July 1, 1992.
(l) (Blank).
(m) The Department of Central Management Services, in
coordination with the Department of Commerce and Community
Affairs (now Department of Commerce and Economic Opportunity),
has implemented an aluminum can recycling program in all State
buildings within 270 days of the effective date of this
amendatory Act of 1997. The program provides for (1) the
collection and storage of used aluminum cans in bins or other
appropriate containers made reasonably available to occupants
and visitors of State buildings and (2) the sale of used
aluminum cans to buyers of recyclable materials.
Proceeds from the sale of used aluminum cans shall be
deposited into I-CYCLE accounts maintained in the Facilities
Management Revolving Fund and, subject to appropriation, shall
be used by the Department of Central Management Services and
any other State agency to offset the costs of implementing the
aluminum can recycling program under this Section.
All State agencies having an aluminum can recycling
program in place shall continue with their current plan. If a
State agency has an existing recycling program in place,
proceeds from the aluminum can recycling program may be
retained and distributed pursuant to that program, otherwise
all revenue resulting from these programs shall be forwarded
to Central Management Services, I-CYCLE for placement into the
appropriate account within the Facilities Management Revolving
Fund, minus any operating costs associated with the program.
(Source: P.A. 101-636, eff. 6-10-20; 102-444, eff. 8-20-21.)
ARTICLE 999. EFFECTIVE DATE