Section 1.2005  General Provisions

 

a)         Solicitation Response

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

 

1)         The date and time paper bids, offers, responses or submissions are received shall be recorded. The paper bids, offers, responses or submissions shall be stored in a secure manner (e.g., locked filing cabinet, locked desk, or locked room with access to the secure location limited to known persons) by the person responsible for receiving the paper bids, offers, responses or submissions. 

 

2)         The SPO and State agencies shall maintain the confidentiality of bids, offers, responses or submissions.  No information within bids, offers, responses or submissions received shall be disclosed to anyone prior to opening.  State employees may confirm receipt of the bid, offer, response or submission to the bidder, offeror, respondent or vendor.

 

3)         If a paper bid, offer, response or submission is opened for identification purposes or in error, the procurement file shall include a signed statement explaining the reason for the mistake or error, including the name of every person involved.  The paper, response or submission shall be resealed until the time set for the opening of the solicitation.

 

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

 

1)         Any bid, proposal, response or quote (including any modification, withdrawal or other procurement-related submission) received after the due date and time for receipt, or at other than the specified location, including eProcurement or the specified email address if applicable, is late.  A submission that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall be considered. State employees shall not be responsible for ensuring subsequent delivery of misdelivered items.  State employees shall not be responsible for failed submissions in the eProcurement system.  Delivery at the specified location and time shall be the sole responsibility of the bidder or offeror.

 

2)         No late procurement-related submission will be considered unless the SPO, and not a designee, determines it would have been timely but for the action or inaction of State personnel directly serving the procurement activity (e.g., providing the wrong address) or a system outage of the eProcurement system. It is the responsibility of the bidder, offeror, respondent or vendor to ensure delivery at the time and to the place specified.  Bidders, offerors, respondents or vendors submitting a late bid, proposal, response or quote will be notified and given the opportunity to retrieve the submission at their cost.  Late submissions not returned to the vendor will be destroyed after all related procurement activity is complete and the resulting contract has been executed.

 

3)         Records shall be made and kept for each late bid, proposal, response, quote, modification or withdrawal.

 

4)         Any other submission, document or entry in the Bulletin or by email that relates to a bid, proposal, response, submission or quote that has a time or date deadline shall be treated in the same manner as a late bid, proposal, response, submission or quote.

 

c)         Extension of Solicitation Due Date

 

1)         The SPO may, prior to the date or time for submitting or modifying a bid, proposal, response, submission or quote, extend the date or time for the convenience of the State.

 

2)         The SPO may, 72 hours prior to the time for submitting a bid, proposal, or response, allow modification to the solicitation for the convenience of the State.  If notice of a modification to a solicitation cannot be made at least 72 hours in advance of the time the response is due, the solicitation shall be cancelled and reissued or the SPO shall extend the time to respond for a reasonable period of time.

 

3)         All notices under this subsection (c) will be provided electronically and posted on the Bulletin.

 

d)         Bid/Proposal/Response/Submission Firm Time

 

1)         Unless otherwise provided in the solicitation, the vendor's bid/proposal/response/submission must be kept firm for at least 30 days after the opening date.

 

2)         After opening bids, proposals, responses or submissions, the SPO may request bidders, offerors, respondents or vendors to extend the time during which the State agency may accept the bids, offers, responses or submissions, provided that, with regard to bids, no other change is permitted.  This extension shall not exceed 180 days after the opening and does not provide an opportunity for others to submit bids, offers, responses or submissions.

 

e)         Electronic Submissions

 

1)         The solicitation or small purchase request for quotation may state that electronic submissions will be considered if they are received at the designated location (e.g., eProcurement system or email) by the time and date set for receipt.  Any required attachments will be submitted as stated in the solicitation or small purchase request for quotation.

 

2)         Electronic submissions authorized by specific language in the solicitation or small purchase request for quotation will be opened in accordance with State electronic security measures in effect at the time of opening.

 

f)         Intent to Submit

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

 

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

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

 

h)         Alternate or Multiple Bids, Proposals or Responses

 

1)         Alternate bids, proposals or responses may be accepted if:

 

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

 

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

 

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

 

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

 

i)          Multiple Items

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

 

j)          "All or None" Bids or Proposals

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

 

k)         Conditioning Bids or Proposals Upon Other Awards

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

 

l)          Unsolicited Bids, Offers or Responses

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

 

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

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

 

n)         Assignment, Novation or Change of Name

 

1)         Assignment.  No State contract is transferable, or otherwise assignable, without the prior written consent of the CPO-GS or SPO, provided, however, that a vendor may assign their receivables under a contract after due notice to the State.  The assignee, except in the case of assignment for payment only, must meet all requirements for contracting with the State. Any purported assignment without prior written consent shall be null and void.

 

2)         Recognition of a Successor in Interest; Novation.  With the exception of real property leases, when in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee agree that:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

o)         Contracting for Installment Purchase Payments, Including Interest

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

 

p)         Incorporation by Reference

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

 

q)         Use of Source Selection Method that is Not Required

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

 

r)          Vendor Signature

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

 

s)         Stringing

 

1)         Stringing of procurements is prohibited.

 

2)         "Stringing" includes:

 

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

 

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

 

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

 

t)          Confidential Data

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

 

1)         The vendor must identify the basis of the claim of confidentiality or exemption from FOIA and show how that basis applies to the request for confidentiality or exemption.  Information submitted without a claim of confidentiality or exemption from FOIA may be disclosed to the public without notice or permission.

 

2)         A State agency in receipt of a FOIA request shall attempt to provide reasonable notice and opportunity to a vendor claiming an exemption under FOIA or claiming the information should not be provided due to trade secret or competitively sensitive, confidential or proprietary information to object prior to disclosure of any material.

 

3)         Information submitted with a claim of confidentiality or exemption from FOIA may still be disclosed to the public if determined by a court or the Public Access Counselor for the Illinois Attorney General that the claim of confidentiality or exemption from FOIA does not meet the requirements for withholding the information under FOIA.

 

u)         Notice of Subcontractor

 

1)         Any contract entered into under this Part shall state whether the services of a subcontractor will be used.  The contract shall include the names and addresses of all known subcontractors with subcontracts with an annual value of more than $50,000, the general type of work to be performed by each subcontractor, and the expected amount of money each will receive under the contract.  [30 ILCS 500/20-120(a)]

 

2)         If, at any time during the term of the contract, a contractor desires to add or change any subcontractors with subcontracts with an annual value of more than $50,000, the contractor shall promptly notify the State agency, in writing, of the names and addresses of the proposed subcontractors, the general type of work to be performed by the proposed subcontractor, and the expected amount of money each new or replaced subcontractor will receive under the contract.

 

3)         No contractor shall change a subcontractor listed in the original bid or proposal, except for documented good cause and with the consent of the SPO.

 

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

 

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

 

ii)         bankruptcy of the subcontractor;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

v)         Pre-Solicitation Assistance

 

1)         For purposes of this subsection (v), "business" includes all individuals with whom a business is affiliated, including, but not limited to, any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder of a business. [30 ILCS 500/50-10.5(e)]

 

2)         Prohibited Bidders.  Except as provided in subsection (v)(5), Section 50-10.5(e) of the Code prohibits any person or business from bidding or entering into a contract if the person or business assisted an employee of the State of Illinois, who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract by reviewing, drafting, directing, or preparing any invitation for bids, request for proposal or request for information or provided similar assistance except as part of a publicly issued opportunity to review drafts of all or part of these documents. [30 ILCS 500/50-10.5(e)]

 

3)         Non-Prohibited Acts.  This Section does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

 

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

 

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

 

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

 

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

 

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

 

4)         Prohibited Acts

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

w)        Pre-Submission Conference

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

 

x)         Federally Funded Purchases

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

 

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

 

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

 

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

 

Section 1.2010  Competitive Sealed Bidding

 

a)         Application

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

 

b)         Invitation for Bids

 

1)         Use.  An IFB is used to initiate a competitive sealed bid procurement.

 

2)         Content.  An IFB shall include, at a minimum, the following:

 

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

 

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

 

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

 

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

 

3)         Delivery-Related Costs

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

 

c)         Amendments to Invitations for Bids

 

1)         Form.  Amendments to IFBs shall be clearly identified and shall reference the portion of the IFB being amended.

 

2)         Distribution.  Amendments shall be made available to all prospective bidders known to have received an IFB through posting on the Bulletin.

 

3)         Timeliness.  Amendments shall be made available at least 72 hours prior to the date or time for submitting a bid to allow prospective bidders to consider them in preparing their bids.    If notice cannot be made at least 72 hours in advance of the time responses are due, the solicitation may be cancelled and reissued or the SPO may extend the time to respond for a reasonable period of time.

 

d)         Pre-Opening Modification or Withdrawal of Bids

 

1)         Procedure.  Bids may be modified or withdrawn by written notice received in the location designated in the IFB prior to the time and date set for bid opening.

 

2)         Disposition of Bid Security.  If a bid is withdrawn in accordance with this Section, the bid security, if any, shall be returned to the bidder.

 

3)         Records.  All documents relating to the modification or withdrawal of bids shall be made a part of the appropriate procurement file.

 

e)         Opening and Recording of Bids

 

1)         Bids and modifications shall be opened publicly at the time, date and place designated in the IFB in the presence of a State witness or through an electronic procurement system selected by the CPO-GS.  The person opening bids shall not serve as witness. 

 

2)         The CPO-GS shall determine information that shall be recorded, read and made available at the opening, including items such as the name of each bidder, the bid price and such other information the CPO-GS determines is appropriate. 

 

f)         Bid Evaluation and Award

 

1)         General.  The contract is to be awarded to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the IFB, except as permitted in the Code and this Part.  The IFB shall set forth the requirements and criteria that will be used to determine the lowest responsive bidder.  No bid shall be evaluated for any requirements or criteria for price or responsiveness that are not disclosed in the IFB.

 

2)         Responsibility.  Responsibility of prospective vendors is covered by Section 1.2046 (Responsibility).

 

3)         Responsiveness.  A bid must conform in all material respects to the IFB.

 

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

 

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

 

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

 

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

 

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

 

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

 

4)         Determination of Lowest Bidder.  Following determination of product or service acceptability as set forth in this subsection (f), bids will be evaluated to determine which bidder offers the lowest cost to the State in accordance with the evaluation criteria set forth in the IFB, including options if applicable. Only objectively measurable criteria that are set forth in the IFB shall be applied in determining the lowest bidder.  Examples of such criteria include, but are not limited to, transportation cost, administrative cost and ownership or life-cycle cost formulas.  Evaluation factors need not be precise predictors of actual future costs, but to the extent possible, the evaluation factors shall be reasonable estimates based upon information the State has available concerning future use and shall treat all bids equitably.  Pricing for optional supplies or services, or for renewal terms, may be considered, particularly when the pricing for those items or terms is unbalanced when compared to other pricing in the bid.

 

5)         Price Negotiation. Negotiations are permitted with the low bidder to obtain a lower price for the item bid.

 

6)         No Disclosure of Information

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 1.2012  Multi-Step Sealed Bidding and Proposals

 

a)         Definition

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

 

b)         Conditions for Use

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

 

1)         to invite and evaluate possible diverse technical offers to determine their acceptability to fulfill the purchase description requirements; and

 

2)         to conduct discussions for the purposes of facilitating understanding of the technical offer and purchase description requirements and, when appropriate, obtain supplemental information, permit amendments of technical offers, or amend the purchase description.

 

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

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

 

d)         Procedure for Step One of MSB/P

 

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

 

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

 

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

 

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

 

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

 

2)         Amendments to the IFB or RFP.  After receipt of unpriced technical offers, amendments to the IFB or RFP shall be distributed only to bidders or offerors who submitted unpriced technical offers, and those bidders or offerors shall be permitted to submit new unpriced technical offers or to amend those submitted.  If, in the opinion of the SPO, a contemplated amendment will significantly change the nature of the procurement, the IFB or RFP may be canceled in accordance with Section 1.2040 (Cancellation of Solicitation and Contract Awards; Rejection of Bids or Proposals) and a new IFB or RFP issued.

 

3)         Receipt and Handling of Unpriced Technical Offers. Unpriced technical offers submitted by bidders or offerors shall be marked with the date and time received.

 

4)         Step one of the MSB/P and modifications shall be opened publicly at the time, date and place designated in the MSB/P in the presence of a State witness or through an electronic procurement system selected by the CPO-GS.  The person opening bids shall not serve as witness.  Only the name of the bidder or offeror shall be read.  Technical offers shall not be disclosed to persons not authorized by the SPO.

 

5)         Evaluation of Unpriced Technical Offers.  The unpriced technical offers submitted by bidders or offerors shall be evaluated solely in accordance with the criteria set forth in the IFB or RFP. 

 

6)         Discussions.  The State agency, in consultation with the SPO, may conduct discussions with a bidder or offeror to determine in greater detail the bidder's or offeror's qualifications, to explore with the bidder or offeror its ability to supply the specific supply or service, and the bidder's or offeror's proposed method of performance.

 

7)         Unacceptable Unpriced Technical Offer

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 1.2013  Reverse Auctions

 

a)         CPO-GS Authorization 

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

 

b)         Reverse Auction Process 

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

 

1)         Prequalification

 

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

 

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

 

2)         Price

 

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

 

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

 

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

 

c)         Technical Difficulties

 

1)         The auction time may be extended or rescheduled by the CPO-GS or designee if technical difficulties at the State site do not allow the auction to be conducted as intended.  Participants will be notified of an extension or a rescheduling.

 

2)         If technical difficulties occur at a vendor site such that the vendor cannot electronically submit a price, the CPO-GS or designee may accept a fax and will then enter the price for the vendor.  Faxed prices will not be accepted later than 5 minutes before the originally scheduled end of the auction or if the faxed prices are higher than the then-existing low price.

 

d)         Reverse Auction Training

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

 

e)         Disclosure of Reverse Auction Information

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

 

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

 

Section 1.2015  Competitive Sealed Proposals

 

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

 

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

 

1)         when evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, when the types of supplies or services may require the use of comparative, judgmental evaluations to evaluate them adequately, or when the type of need to be satisfied involves weighing aesthetic values to the extent that price is a secondary consideration;

 

2)         whether oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposals;

 

3)         whether offerors may need to be afforded the opportunity to revise their proposals, including price;

 

4)         whether award may need to be based upon a comparative evaluation, as stated in the Request for Proposals, of differing price, quality, and contractual factors in order to determine the most advantageous offering to the State. Quality factors include technical and performance capability and the content of the technical proposal;

 

5)         whether the primary consideration in determining award may not be price; and

 

6)         if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State.

 

c)         Content of the Request for Proposals

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

 

1)         all of the evaluation factors, including price, and their relative importance;

 

2)         a statement that discussions may be conducted with offerors who submit proposals determined to be reasonably susceptible of being selected for award;

 

3)         a statement that revisions may be requested after discussions and best and final offers may be requested; and

 

4)         a statement of when and how price should be submitted.

 

d)         Subfactors and Scoring Tools

 

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

 

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

 

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

 

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

 

f)         Receipt and Registration of Proposals

 

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

 

2)         Proposals and modifications shall be opened in a manner to avoid disclosing contents to other offerors.

 

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

 

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

 

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

 

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

 

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

 

g)         Evaluation of Proposals

 

1)         Prior to evaluation, an evaluation team kick-off meeting must be held.  The purpose of that meeting is to provide the evaluation team with information regarding the evaluation process, including but not limited to conducting the evaluation with fairness and integrity, maintaining confidentiality, and discussing any possible conflicts of interest of evaluation team members.  The SPO and all evaluation team members must attend the meeting.  Attendance may be in person, by conference call, or by videoconference call.

 

2)         Evaluation.  The evaluation shall be based solely on the evaluation factors set forth in the RFP, except as communicated in advance to each proposer with opportunity to make necessary adjustments to the proposal. 

 

3)         The first part shall be evaluated and ranked independent of the second part of all proposals.  Each member of the evaluation team must evaluate the first part individually. 

 

4)         After completion of the individual evaluations, the SPO shall determine whether the evaluation team should meet to confirm the individual scores. Factors the SPO should consider in determining whether the evaluation team should meet include whether there is a significant or substantial variance of scores, divergent scoring comments, or other information that suggests the need for further discussion.  Notes regarding the meeting are required only if there are changes to individual scores.

 

5)         SPO has the right to attend all evaluation team meetings.

 

6)         The price proposal shall be opened in the presence of a State witness and may be distributed to the appropriate evaluators.

 

7)         Commitment to Diversity. Factors to be considered in the award of these commitment to diversity points may include, but are not limited to:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

2)         Conduct of Discussions.  Offerors reasonably susceptible to being selected for award shall be accorded fair and equal treatment with respect to any opportunity for discussions and clarifications of proposals. Discussions may be conducted by the State agency, in consultation with the SPO, with vendors reasonably susceptible of being awarded a contract based on qualifications and price.  If during discussions it is determined there is a need for substantial revision of, or change to, the RFP, the RFP shall be cancelled and may be resolicited to incorporate the clarification or change.  Auction techniques (revealing one offeror's price to another) and disclosure of any information from competing proposals are prohibited.  Any substantial oral clarification of a proposal shall be reduced to writing by the offeror.

 

3)         Best and Final Offers.  The State agency, with the approval of the SPO, may request best and final offers from those offerors deemed reasonably susceptible of being selected for award.  Best and final offers shall be submitted by a specified date and time.  The State agency, with the approval of the SPO, may conduct additional discussions or require another submission of best and final offers.  The scope of the best and final offer shall be defined by the State agency with the approval of the SPO.  The primary objective of best and final offers is to maximize the State's ability to obtain best value, based on the requirements and the evaluation factors set forth in the solicitation.  If an offeror does not submit either a notice of withdrawal or another best and final offer, the offeror's immediately previous offer will be construed as its best and final offer.

 

i)          Award

 

1)         After completion of the evaluation, if board, commission, or authority approval of a contract award is necessary, the State agency may have separate discussions with individual board, commission, or authority members to obtain each individual board, commission or authority member's approval of the award prior to publishing the award in the Bulletin.

 

2)         An award shall be made by the SPO pursuant to a written determination showing the basis on which the award was found to be most advantageous to the State, taking into consideration price and evaluation factors set forth in the RFP.  An award made to the highest scoring vendor is presumed to be most advantageous to the State, taking into consideration evaluation factors set forth in the RFP, including price.  The contract file shall contain the basis on which the award is made.

 

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

 

Section 1.2020  Small Purchase Limits

 

a)         Application

 

1)         Individual procurements of $100,000 or less for supplies or services may be made without notice or competition. These small purchase maximums shall be subject to the annual cost of living increases set forth in subsection (a)(3).

 

2)         Procurements for construction and construction related services of $100,000 or less, or as increased to reflect increases in the consumer price index as determined by the CPO-GS.

 

3)         Each April, the CPO-GS will determine the CPI adjustment to the small purchase thresholds applicable for the next fiscal year. If the CPI is greater than zero, the thresholds identified in Section 20-20(a) of the Code will be reduced in an amount that, with the CPI increase, would result in the small purchase thresholds remaining as stated in subsection (a)(1). By July 1, 2019 and every five years thereafter, the CPO-GS will review the small purchase thresholds to determine if a modification to the thresholds is needed.  If a modification is needed, the CPO-GS will consult with the PPB. 

 

b)         Determination of Small Purchase Status

 

1)         In determining whether a contract is under the small purchase limit, the stated price or value, as applicable, of the supplies or services plus any optional supplies and services, determined in good faith, shall be utilized.  When the value is calculated month-to-month or in a similar fashion, the amount shall be calculated for a 12 month period.

 

2)         If only a unit price or hourly rate is known, the contract shall be considered small and shall have a not to exceed limit applicable to the type of procurement (see subsection (a)).

 

3)         If, after signing the contract, the actual cost of completing the contract is determined to exceed the small purchase amount, and the SPO determines that a supplemental procurement is not economically feasible or practicable because of the immediacy of the State agency's needs or other circumstances, the SPO must follow the procedures for sole source or emergency procurement, whichever is applicable, to complete the contract.

 

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

 

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

 

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

 

Section 1.2025  Sole Source or Sole Economically Feasible Source Procurement

 

a)         Application

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

 

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

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

 

1)         compatibility of equipment, accessories, replacement parts or service is a paramount consideration;

 

2)         items are needed for trial use or testing of that specific product or service;

 

3)         item is for commercial resale;

 

4)         non-competitive public utility services;

 

5)         item is copyrighted or patented and the item or service is not available except from the holder of the copyright or patent;

 

6)         media for advertising;

 

7)         art, entertainment services or athletic events;

 

8)         radio and television broadcast rights;

 

9)         procurements related to participation in educational, professional, research, public service or athletic activities of organizations of which the State agency is a member.  These procurements may include, but are not limited to, dues and membership fees, travel and lodging and facility usage fees;

 

10)        federal or State grant requires contract with named vendor;

 

11)        items required by franchise agreements; and

 

12)        items that are required for research and no other source is able to meet the researcher's documented need.

 

c)         Sole Source Determination

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

 

d)         Hearing

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

 

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

 

Section 1.2030  Emergency Procurements

 

a)         Authority to Make Emergency Procurements

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

 

b)         Emergency Conditions

 

1)         A statutory emergency condition exists:

 

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

 

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

 

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

 

D)        to ensure the integrity of State records.

 

c)         Quick Purchase

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

 

1)         protect the health and safety of any person;

 

2)         items are available on the spot market or at discounted prices for a limited time so that good business judgment mandates a "quick purchase" immediately to take advantage of the availability and price;

 

3)         rare items, such as articles of historical value or art collections, that are available for a limited time;

 

4)         the opportunity to obtain entertainment, speakers and athletic and other events or performances is available for a limited time;

 

5)         immediate action is necessary to avoid lapsing or loss of federal or donated funds.

 

d)         Scope of Emergency Conditions

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

 

e)         Source Selection Methods

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

 

f)         Determination and Record of Emergency Procurement

 

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

 

2)         Emergency Contract Award

 

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

 

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

 

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

 

iii)        the contract is signed by both parties.

 

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

 

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

 

A)        the vendor's name;

 

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

 

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

 

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

 

4)         Notice of the Emergency Procurement

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

 

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

 

g)         Duration of Emergency Contract

 

1)         The term of the temporary solution emergency contract shall be limited to the time reasonably needed for a competitive procurement for the permanent solution, not to exceed 90 days.

 

2)         A temporary solution emergency contract may be extended beyond 90 days if the CPO-GS determines additional time is necessary and the contract scope and duration are limited to the emergency.  Prior to execution of the extension, a public hearing shall be held at which any person may present testimony.

 

3)         Notice of Extension

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

 

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

 

h)         Contract Extension Hearing

The hearing shall be conducted in accordance with Subpart V. 

 

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

 

Section 1.2035  Competitive Selection Procedures for Professional and Artistic Services

 

a)         Application

 

1)         The provisions of this Section apply to every procurement of professional and artistic (P&A) services, except those subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and except as provided in subsection (e).

 

2)         "Professional and artistic services" means those services provided under contract to a State agency by a person or business, acting as an independent contractor, qualified by education, experience, and technical ability [30 ILCS 500/1-15.60].

 

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

 

1)         "Qualified by education" means the individual who would perform the services must have obtained the level of education specified in the Request for Proposals.

 

2)         "Qualified by experience" means the individual who would perform the services must have the level of general experience specified in the Request for Proposals.

 

3)         "Qualified by technical ability" means the individual who would perform the services must demonstrate a high degree of skill or ability in performing services that are the same, similar or closely related in nature to those specified in the Request for Proposals.

 

4)         An essential element distinguishing P&A services from other services is confidence, trust, and belief in not only the ability, but the talent, of the individual performing the service. 

 

5)         P&A services are primarily for intellectual or creative skills.  Contracts for services primarily involving manual skills or labor are not P&A services contracts.

 

6)         If the professional or artistic contract is with a firm or other business entity, the individuals whose education, experience and technical ability provided the basis on which the firm or other business entity was selected must meet the qualifications.

 

7)         When a State agency requires services that meet the requirements of this subsection (b), the competitive selection procedures described in this Section must be followed.  Services that do not meet the requirements of this Section must be procured in accordance with other methods of source selection authorized by the Code and this Part.

 

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

 

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

 

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

 

f)         Request for Proposals

P&A services shall be procured using an RFP.

 

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

 

A)        the type of services required;

 

B)        a description of the work involved;

 

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

 

D)        the type of contract to be used;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

2)         Evaluation Factors, Evaluation Subfactors, and Scoring Tools

 

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

 

i)          the plan for performing the required services;

 

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

 

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

 

iv)        a record of past performance of similar work.

 

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

 

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

 

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

 

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

 

h)         Receipt and Registration of Proposals

 

1)         Proposals and modifications shall be opened publicly at the time, date and place designated in the RFP.

 

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

 

3)         Proposals and modifications shall be opened in a manner designed to avoid disclosing contents to other offerors.  Other than information that was recorded, read and made publicly available at the opening of the proposals, the State agency conducting the procurement shall not disclose any information contained in the offer outside of the persons authorized by the SPO until after award of the proposed contract has been posted to the Bulletin.  This does not restrict the disclosure of information to board or authority members or to commissioners of a State agency.  Only State personnel and contractual agents authorized by the SPO may review the proposals prior to award.  In authorizing State personnel under this Section, the SPO may require confidentiality and conflict of interest statements be executed.  The SPO may provide blanket authorization to:

 

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

 

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

 

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

 

i)          Evaluation of P&A Proposals 

 

1)         Prior to evaluation, an evaluation team kick-off meeting must be held.  The purpose of that meeting is to provide the evaluation team with information regarding the evaluation process, including but not limited to conducting the evaluation with fairness and integrity, maintaining confidentiality, and discussing any possible conflicts of interest of evaluation team members.  The SPO and all evaluation team members must attend the meeting.  Attendance may be in person, by conference call, or by videoconference call.

 

2)         The evaluation shall be based solely on the evaluation factors set forth in the RFP, except as communicated in advance to each offeror with the opportunity to make necessary adjustments to the proposal.

 

3)         Each member of the evaluation team must evaluate the first part individually.

 

4)         After completion of the individual evaluations, the SPO shall determine whether the evaluation team should meet to confirm the individual scores.  Factors the SPO should consider in determining whether the evaluation team should meet include whether there is a significant or substantial variance of scores, divergent scoring comments, or other information that suggests the need for further discussion.

 

5)         Price will not be evaluated until ranking of all proposals and identification of the most qualified vendor.

 

j)          Discussions with Offerors

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

k)         Selection of the Best Qualified Offerors

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

 

l)          Evaluation of Pricing Data

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

 

1)         If the low price is submitted by the most qualified vendor, the SPO may award to that vendor.

 

2)         If the price of the best qualified vendor exceeds $100,000, the SPO, but not a designee, must state why a vendor other than the low priced vendor was selected and that determination shall be published in the Bulletin.

 

m)        Negotiation and Award of Contract

 

1)         General.  The purchasing agency, in consultation with the SPO, shall attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The purchasing agency, in consultation with the SPO, may, in the interest of efficiency, negotiate with the next highest ranked vendor, while negotiating with the best qualified vendor.

 

2)         Elements of Negotiation. At a minimum, contract negotiations shall be directed toward:

 

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

 

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

 

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

 

3)         Successful Negotiation of Contract with Best Qualified Offeror

 

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

 

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

 

C)        Contracts entered into under this Section shall provide:

 

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

 

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

 

iii)        The rate of renumeration; and

 

iv)        The maximum price.

 

4)         Failure to Successfully Negotiate Contract with Best Qualified Offeror

 

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

 

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

 

n)         Multiple Awards

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

 

o)         Notice of Award

 

1)         After completion of the evaluation, if board, commission, or authority approval of a contract award is necessary, the State agency may have separate discussions with individual board, commission, or authority members to obtain each individual board, commission or authority member's approval of the award prior to publishing the award in the Bulletin.

 

2)         An award shall be made by the SPO pursuant to a written determination showing the basis on which the award was found to be most advantageous to the State, taking into consideration price and evaluation factors set forth in the RFP. An award made to the highest scoring vendor is presumed to be most advantageous to the State, taking into consideration evaluation factors set forth in the RFP, including price. The contract file shall contain the basis on which the award is made.

 

p)         Prequalification

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

 

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

 

Section 1.2036  Other Methods of Source Selection and Contract Formation

 

a)         Split Award

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

 

b)         Multiple Award

 

1)         A multiple award may be made for an indefinite quantity solicitation when award to two or more bidders or offerors for similar products or services is necessary for adequate delivery or service.

 

2)         If a multiple award is anticipated, the solicitation shall state this fact as well as the criteria for award.

 

3)         In a multiple award situation, one vendor shall be designated as the primary recipient of orders, unless otherwise provided in this Section.  The other awardees may receive orders in the event the primary vendor is unable to deliver or for other reasons as determined by the SPO.

 

4)         The State agency shall reserve the right to take bids separately if a particular quantity requirement arises that exceeds its normal requirement or an amount specified in the contract.

 

5)         Multiple Award with Set Rate

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

6)         Geographical

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

 

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

 

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

 

c)         Term and Condition Contracts

 

1)         A term and condition contract contains agreed contractual terms and conditions established for the convenience of the parties to be used in conjunction with a subsequent procurement and processed in accordance with the requirements of the Code and this Part.  A term and condition contract is not a procurement.  It creates no obligation on the part of the State to procure from the vendor, nor does it create an authorization for a State agency to order based on that term and condition contract, except as provided in subsection (c)(2).

 

2)         Orders may be placed against term and condition contracts without use of any method of source selection specified in the Code for convenience of processing sole source, emergency or small procurements. 

 

d)         Auction

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

 

e)         Federal Requirements

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

 

f)         Foreign Country Procurement

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

 

g)         Donations

 

1)         When a procurement will have the majority of funding from a donation, the terms of which require use of particular procurement or contracting procedures, the SPO may follow those procedures, but shall follow the Code and this Part whenever practicable.

 

2)         Donations may be acknowledged by the donee agency in a manner appropriate to the type of donation and the program activity associated with the donation.  Acknowledgment may include, but need not be limited to, public announcement at the event or in donee agency publications, signage at the building, or inviting the donor to attend the program activity associated with the donation.

 

h)         Broker Method for Obtaining Certain Insurance Coverages

 

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

 

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

 

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

 

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

 

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

 

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

 

i)          Competitive Procurements from a Pre-Qualified Pool

 

1)         Conditions for Use. When it may be more efficient or more appropriate, based on the nature of the supply or service, the CPO-GS or a State agency may, with the approval of the SPO, issue a solicitation to identify vendors who meet the criteria, establish a pool of qualified vendors, and then select from that pool as needs arise.  Reasons for use of this alternative include, but are not limited to, the need for information technology or telecommunications supplies or services. 

 

2)         Request for Qualifications. Qualifications shall be solicited by seeking statements of the qualifications from vendors to determine their inclusion in a prequalified pool.  The qualifications submitted to the prequalified pool shall describe the specific supplies or services the CPO-GS or State agency require that the potential vendor can fulfill.

 

3)         Public Notice. Public notice of the Request for Qualifications shall be published in the Bulletin at least 14 days before opening of qualifications.

 

4)         Receipt and Registration of Qualifications

 

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

 

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

 

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

 

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

 

5)         Evaluation Factors. The Request for Qualifications shall contain the factors and subfactors, if any, to be used in determining if a vendor is prequalified to provide the category of supplies or services. These factors and subfactors, if any, include, but are not limited to, responsibility, any necessary experience, any necessary technical knowledge, any required certification or accreditation, and financial stability.

 

6)         Discussion with Responsible Vendors and Revisions of Qualifications. As provided in the Request for Qualifications, discussions may be conducted with responsible vendors who submit qualifications determined to be reasonably susceptible of being prequalified for clarifying and assuring full understanding of and responsiveness for prequalification. Those vendors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of qualifications. Revisions may be permitted after submission and before prequalification. In conducting discussions, there shall be no disclosure of any information derived from qualifications submitted by other vendors. If information is provided to any vendor by the State, it shall be provided to all vendors.

 

7)         Prequalified Pool. A multiple award may be made for the prequalified pool when multiple vendors are prequalified in response to a Request for Qualifications. Vendors shall be prequalified in writing, taking into consideration the evaluation factors set forth in the Request for Qualifications. The procurement file shall contain the basis on which each vendor is determined to be prequalified.

 

8)         Submissions to the Prequalified Pool. Each time the CPO-GS or State agency has a need for supplies or services from the prequalified pool, the CPO-GS or State agency shall provide to each member of the prequalified pool a document that describes in detail the supplies or services needed and the selection criteria the CPO-GS or State agency will use to make an award. The prequalified pool shall have at least 5 days to respond with a submission that includes the price or value for the supplies or services described in the proposal.

 

9)         Discussion with the Prequalified Pool and Revisions to Quotation. As provided in the Request for Qualifications, the State's detail of supplies or services may be discussed with members of the prequalified pool to clarify and assure full understanding of, and responsiveness to, the request for the vendor submission. Each member of the prequalified pool shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted after submission and before award for obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competitors in the prequalified pool. If any other information is disclosed to any member of the prequalified pool, it shall be provided to all members of the prequalified pool.

 

10)        Award. Award shall be made to the responsible prequalified member of the pool whose proposal is determined in writing to be the most advantageous to the State, taking into consideration the selection criteria set forth in the vendor's written submission to the prequalified pool. The procurement file shall contain the basis on which each award is made. If a vendor other than the lowest price or value vendor is awarded the contract, the CPO-GS or State agency shall publish in the Bulletin the reason for awarding to other than the lowest price or value vendor. Prequalification does not guarantee that the vendor will be awarded a contract.

 

11)        Every request for procurement under this subsection (i) shall provide a method for allowing additional vendors to become part of the prequalified pool after its creation. Additions to the prequalified pool shall be made at least annually.

 

12)        This Section shall not apply to a construction agency in the procurement of construction or construction-related materials.

 

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

 

Section 1.2037  Tie Bids and Proposals

 

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

 

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

 

1)         If the tied vendors include only one Illinois resident vendor, the Illinois resident vendor shall be given the award.  "Illinois resident vendor" has the meaning ascribed in Section 1.4510 (Resident Vendor Preference).

 

2)         In all other situations, the award shall be made by lot unless the SPO determines that:

 

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

 

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

 

c)         Records

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

 

1)         The identification number of the solicitation;

 

2)         A description of what was procured;

 

3)         A listing of all bidders or offerors and the prices submitted;

 

4)         The State agency personnel or SPO who flips a coin or draws the lot; and

 

5)         The State agency personnel or SPO who witnesses the flip of the coin or the draw of the lot.

 

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

 

Section 1.2038  Modification or Withdrawal of Bids or Proposals

 

a)         Modification or Withdrawal

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

 

b)         Minor informalities 

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

 

c)         Documentation Required

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

 

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

 

Section 1.2039  Mistakes

 

a)         General

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

 

b)         Mistakes Discovered Before Opening

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

 

c)         Confirmation of Mistake After Opening

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

 

d)         Mistakes Discovered After Opening but Before Award

 

1)         Minor Informalities 

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

 

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

 

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

 

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

 

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

 

2)         Mistakes in Which the Intended Correct Information Is Evident 

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

 

3)         Mistakes in Which the Intended Correct Information Is Not Evident 

The bid or proposal may be withdrawn if:

 

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

 

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

 

e)         During Discussions; Prior to Best and Final Offers

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

 

f)         Mistakes Discovered After Award

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

 

g)         Documentation Required

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

 

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

 

Section 1.2040  Cancellation of Solicitations and Contract Awards; Rejection of Bids or Proposals

 

a)         Policy

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

 

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

 

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

 

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

 

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

 

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

 

D)        ambiguous or otherwise inadequate specifications;

 

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

 

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

 

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

 

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

 

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

 

3)         The notice of cancellation shall:

 

A)        identify the solicitation;

 

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

 

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

 

c)         Rejection of Individual Bids or Proposals

 

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

 

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

 

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

 

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

 

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

 

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

 

d)         Cancellation of a Contract Award

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

 

e)         Documentation

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

 

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

SUBPART F: SUPPLIERS, PREQUALIFICATION AND RESPONSIBILITY

 

Section 1.2043  Suppliers

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 1.2044  Vendor List

 

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

 

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

 

Section 1.2045  Vendor Prequalification

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 1.2046  Responsibility

 

a)         Application

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

 

b)         Standards of Responsibility

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

 

c)         Information Pertaining to Responsibility 

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

 

d)         Written Determination of Nonresponsibility Required

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

 

e)         Affiliated Companies

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

 

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

SUBPART G: BID, PROPOSAL AND PERFORMANCE SECURITY

 

Section 1.2047  Security Requirements

 

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

 

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

 

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

 

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

 

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

 

f)         Bid or Proposal Security

 

1)         The bid or proposal will be used to ensure the bidder or offeror meets all obligations imposed under the solicitation, including the obligation to keep the price, bid or proposal firm for as long a period as specified in the solicitation to enter into a contract and the obligation to file a performance security.  If required, when the contract is awarded, the State agency may retain the bid or proposal security as damages of the bidder or offeror fails to meet its obligations.

 

2)         The bid or proposal security will be returned to the vendor as soon as is practicable after the bid or proposal opening.  The three lowest qualified vendors' security will be returned as soon as possible after the contract is awarded or, if performance security is required, as soon as the successful vendor has filed acceptable performance security.  Security will be returned to the unsuccessful vendors upon expiration of the bid or proposal firm time or execution of the contract, whichever is earlier.

 

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

SUBPART H: SPECIFICATIONS AND SAMPLES

 

Section 1.2050  Specifications and Samples

 

a)         Responsibilities Regarding Specifications

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

 

b)         Procedures for the Development of Specifications

 

1)         All procurements shall be based on specifications that accurately reflect the State's needs.  Specifications shall clearly and precisely describe the salient technical or performance requirements and shall be written in such a manner as to describe the requirements to be met, without being unduly restrictive or having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.

 

2)         Any specifications or standards adopted by business, industry, not-for-profit organization or governmental unit may be adopted by reference.

 

3)         A specification may provide alternate descriptions when two or more design, functional or performance criteria will satisfactorily meet the State's requirements.

 

4)         Article 45 of the Code shall be considered and applied when required or appropriate.

 

5)         A solicitation or specification for a contract, or a contract, may not require, stipulate, suggest or encourage a monetary or other financial contribution or donation, cash bonus or incentive, or economic investment as an explicit or implied term or condition of awarding or completing the contract. [30 ILCS 500/20-50]

 

c)         Brand Name or Equal Specification

 

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

 

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

 

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

 

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

 

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

 

2)         Brand name or equal specifications shall seek to designate more than one brand as "or equal", and shall further state that substantially equivalent products to those designated will be considered for award.

 

3)         Unless the State agency determines that the essential characteristics of the brand names included in the specifications are commonly known in the industry or trade, brand name or equal specifications shall include a description of the particular design, functional or performance characteristics that are required.

 

4)         When a brand name or equal specification is used in a solicitation, the solicitation shall contain explanatory language that the use of a brand name is for the purpose of describing the standard of quality, performance, and characteristics desired and is not intended to limit or restrict competition.  "Or equal" submissions will not be rejected because of minor differences in design, construction or features that do not affect the suitability of the product for its intended use.  Burden of proof that the product is equal is on the bidder.

 

d)         Brand Name Only Specification

 

1)         A "brand name only" specification may be used in a competitive solicitation or a request to place an order with a vendor who has a contract that was the result of a multiple award, provided the State agency makes a written request justifying that only the identified brand name item will satisfy the State's needs and the SPO approves in writing the use of the brand name only specification.

 

2)         Brand name alone may be specified in order to fill medical prescription needs, to stock State retail-type operations, to ensure compatibility in existing systems, to preserve warranty, to ensure maintenance, or as authorized in writing by the SPO.  A State agency may, pursuant to an authorized competitive procedure, select a particular vendor to provide supplies or services for a specified period of time, and for that period the supplier of additional, related and updated supplies and services may be limited to the selected vendor or the brand initially selected.

 

3)         The SPO shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable.  Except in a request to place an order with a vendor who has a contract that was the result of a multiple award, if only one source can supply the requirement, the procurement shall be made under Section 1.2025 (Sole Source or Sole Economically Feasible Source Procurement).

 

e)         Qualified Products List

 

1)         A qualified products list may be developed by the SPO when testing or examination of the supplies prior to issuance of the solicitation is desirable or necessary in order to best satisfy State requirements.

 

2)         When developing a qualified products list, a notice shall be posted to the Bulletin soliciting potential suppliers to submit products for testing and examination to determine acceptability for inclusion in a qualified products list.

 

3)         Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements.

 

f)         Proven Products

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

 

g)         State Required Samples

 

1)         Samples or descriptive literature may be requested when it is necessary to evaluate required characteristics of the items bid. Any required samples must be submitted as instructed in the solicitation, with transportation prepaid by the vendor.  Each sample must be labeled with the vendor's name, address and a means of matching the sample with the applicable bid or proposal.

 

2)         Any sample submitted must be representative of the item that would be delivered if a contract were awarded for that item.  Samples submitted by a successful vendor will be retained to check continuing quality. Submission of samples will not limit the State's right to require adherence to specifications.

 

3)         No payment will be made for samples.  Samples not destroyed or consumed by examination or testing will be returned upon request and at vendor's expense.  The request must be made at time of submission with return collect or prepayment provisions and instructions for return accompanying the samples.  If the vendor does not request return of samples not destroyed or consumed by examination or testing, the State agency may use, donate or destroy unused or leftover samples.

 

4)         Unsolicited bid samples or descriptive literature are submitted at the vendor's risk, may or may not be examined or tested, will not be deemed to vary any of the provisions of the solicitation, and may not be utilized by the vendor to contest a decision or understanding with the State agency.

 

h)         Product Demonstration

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

 

i)          Specifications Prepared by Other Than State Personnel

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

 

j)          Pre-Solicitation Request for Information

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

 

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

 

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. [30 ILCS 530/10]

 

l)          Optional Supplies or Services

 

1)         The solicitation shall identify which parts or features of the work are essential and which optional supplies or services may be included in the project.

 

2)         All optional supplies or services must be clearly identified in the solicitation as optional work.

 

3)         The solicitation shall identify how the State agency will evaluate bids, offers, or responses to determine the lowest price bid or most advantageous proposal, for award purposes, by identifying whether optional supplies or services will or will not be included in the price evaluation.

 

4)         A bid, offer, or response may be rejected if the prices, including optional supplies or services, are significantly or materially unbalanced. A bid or offer is significantly or materially unbalanced:

 

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

 

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

 

5)         Evaluation of optional supplies or services does not obligate the State agency to use those optional supplies or services.  If the State agency adds optional supplies or services not accepted at the time of contract award, a change order must be executed based on the price provided in the bid, offer, or response.  Notice of the intent to exercise any optional supply or service must be published in the Bulletin 14 days in advance of exercise of the optional supplies or services.

 

6)         Pricing for any renewal terms identified in the solicitation shall be applied in determining the price.  A renewal term is not an optional supply or service.

 

7)         Negotiations are permitted with the lowest responsible bidder or the best value offeror to obtain a reduction in the price of the bid or offer.

 

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

SUBPART I: CONTRACTS

 

Section 1.2055  Types of Contracts

 

a)         Scope

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

 

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

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

 

1)         A percentage mark-up from an agreed price list is not a cost-plus-a-percentage-of-cost contract.

 

2)         A percentage mark-up from the cost of a supply or service selected by the State or another vendor under contract to the State is not a cost-plus-a-percentage-of-cost contract.

 

3)         A percentage mark-up from the cost of parts needed in relation to a contract for services does not convert the services contract to a prohibited cost-plus-a-percentage-of-cost contract, provided the parts supplied under the cost-plus-a-percentage-of-cost method do not exceed 20% of the value of the contract.

 

c)         Types of Fixed-Price Contracts

 

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

 

2)         Fixed-Price Contract with Price Adjustment

 

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

 

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

 

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

 

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

 

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

 

d)         Cost-Reimbursement Contracts

 

1)         Determination Prior to Use

 

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

 

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

 

2)         Cost-Reimbursement Contract.  A cost-reimbursement contract provides that the vendor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee.  These contracts establish an estimate of total cost and must establish a ceiling that a vendor may not exceed without the written approval of the SPO.

 

3)         Cost-Plus-Fixed-Fee Contract.  This cost-reimbursement type contract provides for payment to the vendor of an agreed fixed fee in addition to reimbursement of allowable incurred costs.  The fee is established at the time of contract award and does not vary if the actual cost of contract performance is greater or less than the initial estimated cost established for the work.  Thus, the fee is fixed but not the contract amount because the final contract amount will depend on the allowable costs reimbursed.  The fee is subject to adjustment only if the contract is modified to provide for an increase or decrease in the scope of work specified in the contract.

 

4)         Cost Incentive Contracts

 

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

 

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

 

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

 

e)         Performance Incentive Contracts

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

 

f)         Time and Materials Contracts; Labor Hour Contracts

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

 

g)         Indefinite Delivery Contracts

 

1)         Definite Quantity.  A definite quantity contract is a fixed-price contract that provides for delivery of a specified quantity of supplies or services at specified times or when ordered, with deliveries or performance scheduled at designated locations upon order.  A definite quantity contract may be used when it can be determined in advance that a definite quantity of supplies or services will be required during the contract period.

 

2)         Indefinite Quantity.  An indefinite quantity contract is a contract for an indefinite amount of supplies or services furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type.  Generally, an indefinite quantity contract is based on historical usage or the best information available as to quantity as stated in the solicitation and is not a guarantee of a quantity to be ordered.  The contract may provide a minimum quantity the State is obligated to order and may also provide for a maximum quantity provision that limits the State's ability to order. If an estimated quantity is identified in the contract or the notice of award published in the Bulletin, the State agency may order up to 20% more than the estimate without written SPO approval. Any such authorization shall be documented in writing and published in the Bulletin.

 

3)         Requirements Contracts.  A requirements contract is an indefinite quantity contract for supplies or services that specifically obligates the State to order all the actual requirements of designated State agencies during a specified period of time, with deliveries or performance scheduled at designated locations upon order. If identified in the solicitation as a requirements contract, all needed quantity, regardless of any stated estimate, must be ordered from that contract.  A requirements contract shall state a realistic estimated total quantity in the solicitation and resulting contract, but this is not a representation that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable or normal.

 

h)         Leases

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

 

i)          Recovery Contracts

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

 

j)          Renewal, Extension or Purchase Provisions

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

 

k)         State Produced Supplies and Services

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

 

l)          Extraordinary Quantities

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

 

m)        Energy Conservation

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

 

n)         Sale of Advertising in State Publications

 

1)         Pursuant to Section 20-110 of the Code and subject to SPO approval, a State agency may sell ads or advertising space in certain State publications.  The sale of advertising or promotional consideration is not exempt from this Part.

 

2)         These arrangements shall be made pursuant to specifications included in an IFB or, if appropriate, an RFP.

 

3)         The advertising in, or authorized use of, State publications shall be appropriate to the type of publication and the program operations of the State agency.

 

4)         This procedure is authorized in conjunction with, for example, publications that promote tourism, conservation, recycling and the State Fairs.  The executive head of the State agency must concur in writing for the State agency to accept advertising from a person the State agency regulates.

 

5)         Proceeds from the sale of the advertisements shall be paid as stated in the IFB or RFP, including, but not limited to, the following:

 

A)        to the General Revenue Fund;

 

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

 

C)        as free or additional copies; or

 

D)        directly to the printer by the advertiser.

 

o)         Contracting for Installment Purchase Payments, Including Interest

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

 

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

 

Section 1.2060  Duration of Contracts − General

 

a)         General

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

 

b)         Subject to Appropriation

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

 

c)         Conditions for Use of Multi-Year Contracts

A multi-year contract may be used when:

 

1)         special production of definite quantities or the furnishing of long-term services is required to meet State needs; or

 

2)         a multi-year contract will serve the best interests of the State by encouraging effective competition or otherwise promoting economies in State procurement.  The following factors are among those relevant to such a determination:

 

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

 

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

 

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

 

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

 

d)         Multi-Year Contract Procedure

The solicitation shall state:

 

1)         the proposed term;

 

2)         the amount of supplies or services required for the proposed contract period;

 

3)         the type of pricing requested (e.g., firm for term); and

 

4)         how award will be determined.

 

e)         Renewals

 

1)         The initial term of a contract plus available renewals may not exceed 10 years. When the original contract specifically calls for an initial term plus renewals, the renewals may be exercised without further procurement activity, except for the publication of the renewal in the Bulletin as required by Section 15-25 of the Code and Section 1.1525 of this Part and subject to review by the PPB under Section 5-30 of the Code.  The renewal terms and conditions shall not change except as provided in the contract (such as price escalations tied to an index). Renewal provisions may be exercised by the State or by mutual agreement, but shall not be exercised solely at the option of the vendor.  Any renewal that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to competitive procurement procedures established by the Code and this Part.

 

2)         A renewal may only be entered into if authorized by the original contract.

 

3)         When a renewal will result in the total term, counting the initial term and any previous renewals, exceeding 10 years, the State agency's need must be procured using one of the methods of source selection authorized by the Code and this Part.

 

4)         Renewals must be fully executed on or before expiration of the current contract term.  If the renewal is not exercised prior to expiration of the current contract term, the supplies and services must be procured using one of the methods of source selection authorized by the Code and this Part.

 

5)         Filing of Proposed Renewals and Extensions Exceeding $249,999

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

 

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

 

Section 1.2065  Cancellation of Contracts

 

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

 

1)         The successful vendor inexcusably fails to furnish a satisfactory performance bond within the time specified.

 

2)         The vendor inexcusably fails to make delivery at the place or within the time specified in the contract or as ordered by the purchasing agency.

 

3)         Any supplies or services provided under the contract are rejected (for not meeting specification, not conforming to sample, or not being in good condition when delivered) and are not promptly replaced by the vendor.  If there are repeated rejections of the vendor's supplies or services, this shall be grounds for termination or rescission, even though the vendor offers to replace the supplies or services promptly.

 

4)         The vendor is guilty of misrepresentation (e.g., misbranding of food or drugs) in connection with another contract for the sale of supplies or services to the State such that the vendor cannot reasonably be depended upon to fulfill obligations as a responsible vendor under other contracts with the State.

 

5)         The vendor should be adjudged bankrupt; enter into receivership or make a general assignment for the benefit of creditors due to insolvency; disregard laws, rules, or instructions of the SPO; or act in violation of any provision of the contract; or if the contract conflicts with any statutory or constitutional provision of the State of Illinois or of the United States.

 

6)         Any other breach of contract or other unlawful act by the vendor.

 

7)         The contract was obtained by fraud, collusion, conspiracy or other unlawful means; or

 

8)         The contract conflicts with any statutory provision of the State of Illinois or of the United States.

 

b)         Damages

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

 

1)         the additional cost of supplies or services bought elsewhere;

 

2)         cost of repeating the procurement procedure;

 

3)         any expenses incurred because of delay in receipt of supplies or services; and

 

4)         any other damages caused by the vendor's breach of contract or unlawful act.

 

c)         Withholding Money to Compensate State for Damages

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

 

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

 

Section 1.2067  Contract Amendments and Change Orders

 

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

 

b)         Change Orders

 

1)         A change order is defined in Section 1.15.  Renewals, change of a vendor's name, and orders against master contracts are not change orders.

 

2)         Change orders that increase or decrease the cost of a contract or an estimated contract by a total of $10,000 or more, or the time of completion by a total of 30 days or more, must be accompanied by a written determination that includes a statement that: the circumstances said to necessitate the change in performance were not reasonably foreseeable at the time the contract was signed; the change is germane to the original contract as signed; or the change order is in the best interest of the State. [720 ILCS 5/33E-9] Agencies may not divide change orders into smaller parts to avoid requirements for written determinations or publication.

 

3)         A change order shall be executed by the State agency and vendor evidencing the change.  All changes that require a written determination as provided in subsection (b)(2) shall be approved by the SPO.  Change orders that increase the cost of a contract or an estimated contract by a total of $10,000 or more or the time of completion by more than 30 days shall be published on the Bulletin, pursuant to Section 15-25 of the Code and documented pursuant to Section 33E-9 of the Criminal Code of 2012 [720 ILCS 5], in advance of execution of the change order.  Although use of emergency contracting is discouraged, if exigent circumstances require contract execution prior to publication on the Bulletin (e.g., emergency salt purchases on a holiday), emergency contracting is permitted pursuant to Section 20-30 of the Code.

 

4)         A change order to a contract for professional or artistic services may not:

 

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

 

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

 

5)         The total contract term, including the initial term, renewals, extensions and change orders shall not exceed 10 years.  Any change order that would extend the total term beyond 10 years is void.  Any continuing need for supplies and services must be procured using one of the methods of source selection authorized by the Code and this Part.

 

6)         Prior to executing a change order with a cost estimated to exceed $249,999, the proposed change order must be submitted to PPB.  The PPB shall have up to 14 days to review and comment on the change order. The SPO assigned to the State agency may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.

 

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

SUBPART J: PROCUREMENT FILES

 

Section 1.2080  Public Procurement File

 

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

 

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

 

c)         Documentation of Procurement Actions

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

 

1)         The form of decision memo showing approvals to proceed at all stages;

 

2)         Bulletin postings;

 

3)         Solicitation document (e.g., IFB or RFP) and all amendments, clarifications and best and final requests;

 

4)         Vendors' responses, including clarifications and responses to best and final requests (losing responses may be stored elsewhere);

 

5)         Evaluation material (e.g., scoring guidelines and forms; completed score sheets for individual evaluators, including notes; evaluation team's combined score sheets; evaluation team's recommendation; and management's decision);

 

6)         Protest and resolution;

 

7)         Contract and any order, change order, amendments, renewal or extension;

 

8)         If conducted, contractor performance reviews;

 

9)         All information from subsections (c)(1) through (c)(8), less information exempt from disclosure under the Freedom of Information Act or other law (for example the Architectural, Engineering and Land Surveying Qualifications Based Selection Act, which exempts contractor performance reviews), shall be prepared and available for inspection and copying, with information from subsections (c)(1) through (c)(5) available within 7 business days following the award being posted to the Bulletin.

 

d)         The procurement file includes the contract file.

 

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

 

Section 1.2084  Record Retention

 

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

 

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

 

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

 

2)         by a subcontractor for 3 years from the later of the date of final payment under the subcontract or completion of the subcontract; and for such longer period of time as is necessary to complete ongoing or announced audits.

 

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

 

Section 1.2086  Filing with the Comptroller

 

a)         Filing with Comptroller

 

1)         Whenever a grant, defined pursuant to accounting standards established by the State Comptroller, or a contract liability, except for contracts paid for from personal services or contracts between the State and its employees to defer compensation in accordance with Article 24 of the Illinois Pension Code, exceeding $20,000 is incurred by any State agency, a copy of the contract, purchase order, grant or lease shall be filed with the Comptroller within 30 days thereafter. [30 ILCS 500/20-80(b)]

 

2)         For each State contract for supplies or services awarded on or after July 1, 2010, the contracting agency shall provide the applicable rate and unit of measurement of the supplies or services on the contract obligation document as required by the Comptroller. [30 ILCS 500/20-80(b)]

 

3)         Any cancellation or modification to any such contract liability shall be filed with the Comptroller within 30 days after its execution. [30 ILCS 500/20-80(b)]

 

b)         Late Filing Affidavits

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

 

c)         Timely Execution of Contracts

 

1)         No voucher shall be submitted to the Comptroller for a warrant to be drawn for the payment of money from the State Treasury or from other funds held by the State Treasurer on account of any contract unless the contract is reduced to writing before the services are performed and filed with the Comptroller.  Vendors shall not be paid for any supplies that were received or services that were rendered before the contract was reduced to writing and signed by all the necessary parties. [30 ILCS 500/20-80(d)]

 

2)         Upon written request of the State agency and with justification required by the CPO-GS, the CPO-GS may request an exception to Section 20-80(d) of the Code by submitting a written statement to the Comptroller and Treasurer setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services were performed.  A waiver of Section 20-80(d) of the Code must be approved by the Comptroller and Treasurer.  Section 20-80(d) of the Code does not apply to emergency purchases if notice of the emergency purchase is filed with the PPB and published in the Bulletin as required by the Code.  [30 ILCS 500/20-80(d)]

 

3)         The CPO-GS may require the State agency to provide additional information on a form prescribed by the CPO-GS.

 

4)         Regardless of the source of funds, contracts or change orders shall be reduced to writing before supplies are received or services are rendered. If supplies are received or services are performed prior to execution of a contract or change order, a written statement setting forth the circumstances and reasons why the contract or change order could not be reduced to writing before the supplies were received or the services were performed shall be maintained in the procurement file. Agencies shall provide a monthly report to the SPO of contracts or change orders not reduced to writing before supplies or services were rendered.

 

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

SUBPART K: WORKING CONDITIONS

 

Section 1.2560  Prevailing Wage

 

a)         Responsible Vendors

 

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

 

A)        Printing.

 

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

 

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

 

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

 

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

 

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

 

Section 1.2570  Equal Employment Opportunity; Affirmative Action

 

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

 

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

 

Section 1.2575  Subcontractors (Repealed)

 

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

SUBPART L: CONTRACT PRICING

 

Section 1.2800  All Costs Included (Repealed)

 

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

SUBPART M: CONSTRUCTION AND CONSTRUCTION RELATED PROFESSIONAL SERVICES

 

Section 1.3005  Construction and Construction Related Professional Services

 

a)         General Provisions for Construction of Buildings

 

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

 

A)        Plumbing.

 

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

 

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

 

D)        Electrical wiring.

 

E)        General contract work.

 

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

 

b)         Request for Payment Form Specified by the State Agency

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

 

c)         Periodic Payments

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

 

d)         Retained Percentage

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

 

e)         Additional Work

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

 

f)         Improvements to Leased Real Estate

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

 

g)         Construction Manager Services

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

 

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

SUBPART N: REAL PROPERTY LEASES AND CAPITAL IMPROVEMENT LEASES

 

Section 1.4005  Real Property Leases and Capital Improvement Leases

 

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

 

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

 

Section 1.4010  Authority

 

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

 

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

 

Section 1.4015  Method of Source Selection

 

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

 

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

 

1)         Property of less than 10,000 square feet with rent of less than $100,000 per year.

 

2)         Duration of less than one year that cannot be renewed.

 

3)         Specialized space available at only one location.  Specialized space is defined as space of unique function or configuration, not generally available on the market on an as built or turnkey basis.  Examples of specialized space include, but are not limited to, laboratories, vehicle testing stations, correctional facilities, medical facilities, boat docks and evidence storage facilities.

 

4)         Renewal or extension of leases provided that:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 1.4020  Request for Information − Real Property and Capital Improvement Leases

 

a)         RFI-Real Property Leases Form

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

 

1)         The type of property to be leased;

 

2)         The proposed uses of the property;

 

3)         The duration of the lease;

 

4)         The preferred location of the property, including acceptable geographic boundaries;

 

5)         A general description of the configuration desired [30 ILCS 500/40-20(b)];

 

6)         Special and standard lease terms and conditions, qualifications and responsibility requirements, disclosures and certifications;

 

7)         The permissible methods of submission, including the address to which responses may be sent; and

 

8)         The criteria for evaluating responses based on the minimum standards and conditions for occupancy.

 

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

 

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

 

1)         Response forms and instructions for completing forms;

 

2)         A copy of spatial and performance guidelines required to meet the needs of the State agency to occupy the real property being procured; and

 

3)         The date and time responses must be submitted.

 

d)        Public Notice

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

 

e)         Response

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

 

f)         Negotiation and Determination

 

1)         The SPO or those who conduct leasing activities may enter into discussions with respondents to the RFI-Real Property Leases for the purpose of clarifying State agency needs and the information supplied by the respondents, On the basis of the information supplied and discussions, if any, the SPO shall make a written determination identifying the responses that meet the minimum criteria set forth in the RFI-Real Property Leases.  Negotiations shall be entered into with all qualified respondents for the purpose of securing a lease that is in the best interest of the State. [30 ILCS 500/40-20(d)] Site visits may be made as part of the discussion and/or negotiation process.

 

2)         The SPO reserves the right to reject any responses and to request and evaluate "best and final" proposals.  Best and final offers shall be sought after a written determination is made by the SPO or designee that it is in the best interest of the State to request best and final proposals.  A best and final proposal shall not be requested from any vendor deemed non-responsive or who does not meet the minimum criteria set forth in the RFI.

 

3)         The State agency advertised in the RFI may be substituted by another State agency prior to award as long as the elements listed in subsections (a)(1) through (6) do not change materially as a result of the substitution and the solicitation allows for that substitution.

 

g)         Contract Award, Reporting and Filing

 

1)         The SPO shall review all relevant information and shall make the final award, which will be published in the Bulletin.  Notification of award will be sent to all respondents.

 

2)         When the lowest response by price is selected, a written report of the negotiation shall be retained in the procurement file and shall include the reasons for the final selection.

 

3)         When the lowest response by price is not recommended, the SPO shall forward to the CPO-GS, along with the lease, notice of the identity of the lowest respondent by price, and written reasons for the recommendation of a different response.  The CPO-GS shall publish the written reasons for selection in the next volume of the Bulletin. [30 ILCS 500/40-20(d)] The written reasons for the selection of the vendor shall be retained in the procurement file.

 

h)        PPB Review

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

 

i)         State Agency Cooperation

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

 

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

 

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

 

Section 1.4025  Lease Requirements

 

a)         Length of Leases

 

1)         Maximum Term.  Except when a longer term is authorized by law, leases, inclusive of renewals, shall be for a term not to exceed 10 years and shall include a termination option in favor of the State after 5 years.

 

2)         Renewal Option.  Leases may include a renewal option.  An option to renew may be exercised only when the CPO-GS determines in writing that renewal is in the best interest of the State.  The CPO-GS shall publish a notice of the intent to exercise the option in the Bulletin at least 30 days prior to the exercise of the option.  [30 ILCS 500/40-25(b)]

 

3)         All leases shall include a provision that they are subject to termination and cancellation in any year the General Assembly fails to make an appropriation to make payments under the terms of the lease. [30 ILCS 500/40-25(c)]

 

4)         Month-to-Month and Holdover.  No lease may continue on a month-to-month or other holdover basis for a total of more than 6 months. [30 ILCS 500/40-25(d)]

 

b)         Lessor's Failure to Make Improvements

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

 

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

 

1)        The disclosure shall be subscribed and sworn or otherwise affirmed by an owner, authorized trustee, corporate official, partner, managing agent or other authorized person.

 

2)        The disclosure shall set forth all ownership interests.  By way of example, the disclosure should identify the names of the beneficiaries of a land trust in addition to the trustee, the names of all partners whether general or limited in nature, the names of all members or managers of a limited liability company and the names of all shareholders in a corporation who are entitled to receive more than 5% of the total distributable income of the entity.  If the entity is publicly traded and no readily known individual owns more than a 5% interest, then the requirements of this subsection (c) may be met by an officer or managing agent of the entity making an affirmative statement to this effect.

 

3)        The disclosure shall set forth the identity of any State officer, employee or elected official, or the wife, husband or minor child of that person, having an ownership or beneficial interest under the lease.  In the event a person is so set forth, the disclosure shall include a specific designation of the percentage of total distributable income to the person, together with that of the wife, husband or minor child of that person, is entitled to receive from any firm, partnership, association or corporation that is the lessor.

 

4)        It shall be the responsibility of the lessor to notify the CPO-GS, CMS, SPO or those who conduct leasing activities of any changes in ownership or beneficial interest and to submit updated disclosure statements reflecting the changes within 30 days after the change.

 

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

 

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

 

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

 

Section 1.4030  Purchase Option

 

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

 

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

 

Section 1.4035  Rent Without Occupancy

 

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

 

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

 

Section 1.4040  Local Site Preferences

 

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

 

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

 

Section 1.4042  Historic Area Preference

 

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

 

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

 

Section 1.4044  Emergency Lease Procurement

 

Emergency lease procurements may be made pursuant to Section 1.2030.

 

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

SUBPART O: PREFERENCES

 

Section 1.4505  Procurement Preferences

 

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

 

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

 

Section 1.4510  Resident Vendor Preference

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 1.4515  Soybean Oil-Based Ink and Vegetable Oil-Based Ink

 

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

 

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

 

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

 

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

 

Section 1.4520  Recycled Supplies

 

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

 

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

 

Section 1.4525  Recyclable Supplies (Paper)

 

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

 

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

 

Section 1.4526  Environmentally Preferable Procurement

 

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

 

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

 

Section 1.4530  Correctional Industries

 

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

 

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

 

Section 1.4535  Qualified Not-for-Profit Agencies for Persons with Significant Disabilities

 

a)         Purpose

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

 

b)         Usage

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

 

c)         Preference

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

 

d)         Pricing Approval

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

 

e)         Procurement Code Requirements

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

 

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

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

 

g)         Publication to Bulletin

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

 

h)         Contract Execution

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

 

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

 

Section 1.4540  Gas Mileage and Flex-Fuel Requirements

 

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

 

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

 

1)         Flexible fuel vehicles are automobiles or light trucks that operate on either gasoline or E-85 (85% ethanol, 15% gasoline) fuel.

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 1.4545  Small Business

 

a)         Set-Aside

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

 

b)         Small Business List

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

 

c)         Required Use

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

 

d)         Withdrawal of Set-Aside

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

 

e)         Criteria for Small Business

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

A)        sole proprietor whose primary residence is in Illinois;

 

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

 

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

 

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

 

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

 

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

 

3)         A small business that is not dominant in its field of operations.  This means the business does not exercise a controlling or major influence in a kind of business activity in which a number of business concerns are primarily engaged.  In determining dominance, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.

 

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

 

f)         Small Business Specialist

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

 

g)         Subcontracting

 

1)         A small business awarded a contract procured as a small business set-aside may subcontract a portion of that contract to another small business meeting the criteria in subsection (e).

 

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

 

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

 

Section 1.4550  Illinois Agricultural Products

 

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

 

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

 

Section 1.4555  Corn-Based Plastic Products

 

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

 

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

 

Section 1.4557  Disabled Veterans

 

It is the goal of the State to promote and encourage the continued economic development of small businesses owned and controlled by qualified veterans and that qualified service-disabled veteran-owned small businesses (SDVOSB) and veteran-owned small businesses (VOSB) participate in the State's procurement process as both prime contractors and subcontractors. Not less than 3% of the total dollar amount of State contracts, as defined by the Director of Central Management Services, shall be established as the goal to be awarded to SDVOSB and VOSB. [30 ILCS 500/45-57]  The CPO-GS will inform each SPO and State agency of procedures established to implement this provision.

 

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

 

Section 1.4570  Contracting with Businesses Owned and Controlled by Minorities, Women, and  Persons with Disabilities

 

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

 

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

 

Section 1.4575  Domestic Products

 

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

 

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

 

1)         If the State needs iron ore, this Section would not apply because the State would be asking for a raw material.

 

2)         If the State needs a steel ingot, the purchase would be subject to this Section as the steel ingot was subject to a manufacturing process.  The iron ore used in manufacturing the ingot would not be subject to any domestic restriction.

 

3)         If the State needs a steel I-Beam, the I-Beam would be subject to this Section.  The iron ore and steel used in creating the I-Beam would not be subject to any domestic restriction.

 

4)         If the State needs a structure made of steel I-Beams, the assembly would have to be done domestically.  The iron ore, steel and I-Beams used in building the structure would not be subject to any domestic restriction.

 

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

 

d)         The preference shall be as follows:

 

1)         The low bid or most advantageous proposal shall be identified without regard to whether the product is a domestic product.

 

2)         In the event of a tie in a competitive sealed bid procurement, the vendor that certifies it will provide domestic supplies shall be given preference.

 

3)         If the low bid or most advantageous proposal does not contain a certification that the supply items are domestic, then any responsive and responsible vendor that is within 2% of the identified vendor's price that has made that certification shall be evaluated as though its price was 2% lower, subject to a maximum dollar value of $50,000.

 

4)         The winning vendor will be determined after application of the preference.

 

5)         Notwithstanding the preference outlined in this subsection (d), if the appropriate SPO determines that the price differential calculated using the preference is not acceptable given the particular procurement and the economic circumstances, the award may be conditioned on receipt of an acceptable price reduction.  If the price cannot be reduced to an acceptable level, the original low priced or most advantageous proposal may be selected for award.

 

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

 

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

 

Section 1.4578  Bio-Based Products

 

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

 

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

 

Section 1.4579  Notice of Preferences

 

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

 

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

 

Section 1.4595  HUBZone Business Contracts

 

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

 

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

 

c)         A HUBZone business must include evidence of its HUBZone qualification with its bid or offer if it's claiming a HUBZone price preference under this Section.

 

d)         The SPO shall publish, in the notice of award, the percentage of the HUBZone price preference for each contract awarded through this Section.

 

e)         Should a contractor no longer qualify as a HUBZone business during the term of a contract that was awarded using the HUBZone price preference, the State agency may void the contract.

 

f)         A contract may not be renewed if the contractor no longer qualifies as a HUBZone business and the contract was awarded using the HUBZone price preference.

 

(Source:  Added at 46 Ill. Reg. 10208, effective June 2, 2022)

SUBPART P: ETHICS

 

Section 1.5002  Continuing Disclosure; False Certification

 

a)         All contractors and subcontractors have a continuing obligation to supplement the disclosures and certifications required by this Section for the duration of the contract and shall report any changes to their disclosures or certifications to the agency and CPO-GS.  Multi-year contracts and subcontracts are subject to the annual recertification requirements of Section 50-2 of the Code.  Every person that has entered into a multi-year contract and every subcontractor with a multi-year subcontract subject to the Code, shall certify, by July 1 of each fiscal year covered by the contract after the initial fiscal year, to the responsible CPO-GS whether it continues to satisfy the requirements of Article 50 of the Code pertaining to eligibility for a contract award.  If a contractor or subcontractor is not able to truthfully certify that it continues to meet all requirements, it shall provide with its certification a detailed explanation of the circumstances leading to the change in certification status.  A contractor or subcontractor that makes a false statement material to any given certification required under Article 50 of the Code is, in addition to any other penalties or consequences prescribed by law, subject to liability under the Illinois False Claims Act [740 ILCS 175] for submission of a false claim. [30 ILCS 500/50-2]

 

b)        The CPO-GS may prescribe a standard format for certification and may include certifications as part of the prequalification process.

 

c)         Should a vendor be unable to certify that it continues to meet requirements of Article 50 of the Code, the relevant information shall be submitted to the SPO for review and disposition.

 

d)        Annual certification through the vendor portal pursuant to Section 1.535 satisfies the requirements of this Section.

 

e)         No continuing certification is required if a contractor or subcontractor continues to meet all the requirements of Article 50 of the Code or if the work under the contract or subcontract is substantially completed.

 

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

 

Section 1.5005  Bribery

 

a)         Prohibition

No person or business shall be awarded a contract or subcontract who:

 

1)         Has been convicted under the laws of Illinois or any other state of bribery or attempting to bribe an officer or employee of the State of Illinois or any other state in that officer's or employee's official capacity; or

 

2)         Has made an admission of guilt of that conduct that is a matter of record but has not been prosecuted for that conduct. [30 ILCS 500/50-5(A)]

 

b)         Businesses

No business shall be barred from contracting with any unit of State or local government, or subcontracting under such a contract, as a result of a conviction under this Section of any employee or agent of the business if the employee or agent is no longer employed by the business and:

 

1)         The business has been finally adjudicated not guilty; or

 

2)         The business demonstrates to the governmental entity with which it seeks to contract, or that is a signatory to the contract to which the subcontract relates, and that entity finds that the commission of the offense was not authorized, requested, commanded or performed by a director, officer or high managerial agent on behalf of the business, as provided in Section 5-4(a)(2) of the Criminal Code of 2012. [30 ILCS 500/50-5(b)]

 

c)         Conduct on Behalf of Business

For purposes of this Section, when an official, agent or employee of a business committed the bribery or attempted bribery on behalf of the business and in accordance with the direction or authorization of a responsible official of the business, the business shall be chargeable with the conduct. [30 ILCS 500/50-5(c)]

 

d)        Certification

Every bid, offer, response, submission, quotation or quote submitted to every contract executed by the State, every subcontract subject to Section 20-120 of the Code, and every vendor's submission to a vendor portal shall contain a certification by the bidder, offeror, respondent, submitter, person who submits a quotation or quote, potential contractor, contractor or subcontractor, respectively, that the bidder, offeror, respondent, submitter, person who submits a quotation or quote, potential contractor, contractor or subcontractor is not barred from being awarded a contract or subcontract under Section 50-5 of the Code, and acknowledges that the CPO-GS may declare the related contract void if any certifications required by that Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid, offer, response, submission, quotation or quote and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false.  A contractor or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony. [30 ILCS 500/50-5(d)]

 

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

 

Section 1.5010  Felons

 

a)         Unless otherwise provided, no person or business convicted of a felony shall do business with the State of Illinois or any State agency, or enter into a subcontract, from the date of conviction until 5 years after the date of completion of the sentence for that felony, unless no person held responsible by a prosecutorial office for the facts upon which the conviction was based continues to have any involvement with the business.  [30 ILCS 500/50-10]

 

b)         Every bid, offer, response, submission, quotation or quote submitted to and contract executed by the State and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, respondent, submitter, contractor, or subcontractor, respectively, that the bidder, offeror, respondent, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges the CPO-GS may declare the related contract void if any of the certifications required by this Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid, offer, or response and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false.  [30 ILCS 500/50-10.5]

 

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

 

Section 1.5011  Debt Delinquency

 

a)         No person shall submit a bid, offer, or response for, or enter into, a contract or subcontract under the Code, or make a submission to a vendor portal, if that person knows or should know that he or she or any affiliate is delinquent in the payment of any debt to the State, unless the person or affiliate has entered into a deferred payment plan to pay off the debt.  [30 ILCS 500/50-11(a)]  For purposes of this Section, terms shall have the meanings ascribed in Section 50-11 of the Code.

 

b)         Every bid, offer, or response submitted to the State, every vendor's submission to a vendor portal, every contract executed by the State, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, contractor or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor or subcontractor and its affiliate is not barred from being awarded a contract or subcontract under this Section and acknowledges that the CPO-GS may declare the related contract void if any of the certifications required by this Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-11(b)]

 

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

 

Section 1.5012  Collection and Remittance of Illinois Use Tax

 

a)         No person shall enter into a contract with a State agency or enter into a subcontract unless the person and all affiliates of the person collect and remit Illinois Use Tax on all sales of tangible personal property into the State of Illinois in accordance with the provisions of the Illinois Use Tax Act [35 ILCS 105], regardless of whether the person or affiliate is a "retailer maintaining a place of business within this State" as defined in Section 2 of the Use Tax Act.  [30 ILCS 500/50-12]  For purposes of this Section, terms shall have the meanings ascribed in Section 50-12 of the Code.

 

b)        Every bid, offer, response, submission, quotation or quote submitted to the State, every submission to a vendor portal, every contract executed by the State, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, respondent, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor, or subcontractor is not barred from bidding for or entering into a contract under Section 50-12(a) of the Code and acknowledges that the CPO-GS may declare the related contract void if any of the certifications completed pursuant to Section 50-12(b) of the Code are false. If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-12]

 

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

 

Section 1.5013  Conflicts of Interest Prohibited by the Code

 

a)         Any bid, proposal, offer of acceptance, or proposed contract must be reviewed for conflicts of interest pursuant to Section 50-13 of the Code. If a conflict is found, no contract will be executed unless the CPO requests and is granted an exemption by the Executive Ethics Commission under Section 50-20 of the Code.

 

1)         Office or Employment 

It is unlawful for any person holding an elective office in this State, holding a seat in the General Assembly, or appointed to or employed in any of the offices or agencies of State government and who receives compensation for such employment in excess of 60% of the salary of the Governor of the State of Illinois, or who is an officer or employee of the Capital Development Board or the Illinois Toll Highway Authority, or who is the spouse or minor child of any such person, to have or acquire any contract, or any direct pecuniary interest in the contract therein, whether for stationery, printing, paper, or any services, materials, or supplies, that will be wholly or partially satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois or in any contract of the Capital Development Board or the Illinois Toll Highway Authority.  [30 ILCS 500/50-13(a)]

 

2)         Financial Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person as described in subsection (a)(1) is entitled to receive more than 7½% of the total distributable income or an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.  [30 ILCS 500/50-13(b)]

 

3)         Combined Financial Interests

It is unlawful for any firm, partnership, association or corporation, in which any person listed in subsection (a)(1) together with his or her spouse or minor children is entitled to receive more than 15%, in the aggregate, of the total distributable income or an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.  [30 ILCS 500/50-13(c)]

 

b)         For the purpose of this Part, an individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise received a direct financial benefit in conjunction with performance of a contract, including finders fees and commission payments.

 

c)         For the purpose of this Part, "distributable income" means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, which is distributed to those entitled to receive a share of the income.  In the case of a for-profit corporation, distributable income means "dividends".  When calculating entitlement to distributable income the entitlement shall be determined at the end of the company's most recent fiscal year.

 

d)         This Section applies to those elected to an office of Illinois State government. This Section does not apply to those elected to local government offices, including school districts, nor does it apply to those elected to Federal offices in this State. This Section does not apply to contracts with licensed professionals, provided those contracts are competitively bid. 

 

e)         Additional exemptions to the application of this Part are listed in Section 50-13(f) of the Code.

 

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

 

Section 1.5014  Environmental Protection Act Violations

 

a)         Unless otherwise provided, no person or business found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act [415 ILCS 5] shall do business with the State of Illinois or any State agency or enter into a subcontract from the date of the order containing the finding of violation until 5 years after that date, unless the person or business can show that no person involved with the violation continues to have any involvement with the business.  [30 ILCS 500/50-14(a)]

 

b)         A person or business otherwise barred by Section 50-14(a) of the Code from doing business with the State of Illinois and any State agency or any subcontractors under the Code may be allowed to do business with the State of Illinois or any State agency if it is shown that there is no practicable alternative to the State to contracting with that person or business.  [30 ILCS 500/50-14(b)]

 

c)         Every bid, offer, or response submitted to the State, every contract executed by the State, every submission to a vendor portal, and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, offeror, respondent, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, respondent, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under Section 50-14(c) of the Code and acknowledges that the contracting State agency may declare the related contract void if any of the certifications completed pursuant to that subsection (c) are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false. [30 ILCS 500/50-14(c)]

 

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

 

Section 1.5015  Negotiations for Future Employment

 

a)         It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any firm, partnership, association or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment. [30 ILCS 500/50-15(a)]

 

b)         An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an independent contractor is in a "continual contractual relationship" from the effective date of the contract until such time as the contract is terminated.

 

c)         An individual who performs services pursuant to a contract and who meets the requirements of an "independent contractor" as opposed to an "employee" is in a "continual contractual relationship" if the contract term is indefinite, is automatically renewed, is renewable at the individual's option, is renewable unless the State must act to terminate, or has a definite term of at least three months.

 

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

 

Section 1.5020  Exemptions

 

If the SPO finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, the SPO shall forward to the CPO-GS the name of the vendor and a description of the proposed contract and of the conflict, and shall state why an exemption should be granted.  The CPO-GS shall decide whether to disapprove the contract or submit the files to the Executive Ethics Commission to determine whether an exemption should be granted in accordance with Section 50-20 of the Code.  The CPO-GS may request the State agency's position on the conflict of interest to assist in the CPO-GS' decision.

 

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

 

Section 1.5021  Bond Issuances

 

a)         Definitions.  For the purposes of this Section 1.5021, the following listed terms shall have the same meaning as in the Code and as further defined in this subsection (a).

 

1)         "Entity" means brokers, dealers and municipal securities dealers as defined in, and subject to, Rule G-37 and Rule G-38 of the Municipal Securities Rulemaking Board (MSRB).

 

2)         "Independent Consultant" means a person used by the entity to obtain or retain securities business through direct or indirect communication by the person with a State official or employee (including an official or employee of the State agency) on behalf of the entity when the communication is undertaken by the person in exchange for or with the understanding of receiving payment from the entity or other person.  Independent Consultant does not include:

 

A)        a finance professional employed by the entity; or

 

B)        a person whose sole basis of compensation from the entity is the actual provision of legal, accounting or engineering advice, services or assistance in connection with the securities business that the entity seeks to obtain or retain. [30 ILCS 500/50-21(a)]

 

3)         "Issuance of bonds or other securities by the State agency" means the purchase or placement on other than a competitive bid of a primary offering of the State agency's general obligation municipal securities.

 

4)         "Issuance by the State agency" means the issuance of bonds or other securities by the State agency when acting as a governmental issuer specified in MSRB Rule G-37.

 

5)         "MSRB Rule G-37" and "MSRB Rule G-38" refer to the Municipal Securities Rulemaking Board rules in effect on August 6, 2012, or any successor rules adopted by the MSRB on the same subject after August 6, 2012, as provided in Section 50-21(b) and (c) of the Code.  MRSB Rule 37 went into effect April 25, 1994, and MRSB Rule G-38 went into effect on August 29, 2005.  Copies of G-37 and G-38 are available to the public at the MSRB website: http://www.mrsb.org, at the United States Security and Exchange Commission's website: http://sec.gov, and at the office of the CPO-GS. (See 30 ILCS 500/50-21(b) and (c).)

 

b)         Use of Independent Consultants

 

1)         Section 50-21(a) of the Code prohibits the State agency from entering into a contract with respect to the issuance of bonds or other securities by the State agency with any entity that uses an independent consultant to obtain or retain securities business through direct or indirect communications by the person with a State official or employee, including an official or employee of the State agency.  Use of an independent consultant is also prohibited by MSRB Rule G-38.  Every contract between the State agency and an entity relating to the issuance of bonds or other securities by the State agency shall include a certification that the entity did not use an independent consultant to obtain the contract and that the entity has not been found to have knowingly violated in Illinois MSRB Rule G-38 (or any successor rule) with respect to the prohibition on obtaining or retaining municipal securities business.

 

2)         In the event a federal agency finds that an entity has knowingly violated MSRB Rule G-38 in the State of Illinois, the CPO-GS shall bar that entity from participating in any contract with respect to the issuance of bonds or other securities by any of the State agencies for a period of one year as specified in Section 50-21(c) of the Code.

 

c)         Prohibited Political Contributions

 

1)         Section 50-21(b) of the Code requires that every contract between the State agency and an entity relating to the issuance of bonds or other securities by the State agency include a certification that the entity is, and will remain for the duration of the contract in compliance with the MSRB Rule G-37 requirement for reporting political contributions and that the entity has not been found to have knowingly violated in Illinois MSRB Rule G-37 (or any successor rule) with respect to the making of prohibited political contributions or payments.  Failure to remain in compliance throughout the term of the contract shall make the contract voidable by the CPO-GS.

 

2)         In the event a federal agency finds that an entity has knowingly violated MSRB Rule G-37 in the State of Illinois by making prohibited political contributions, the CPO-GS shall impose a penalty that is at least twice the fine assessed by the federal agency.  In addition, the CPO-GS shall bar the entity from participating in any contract with respect to the issuance of bonds or other securities by any of the State agencies for a period of one year as specified in Section 50-21(c) of the Code.

 

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

 

Section 1.5023  Other Conflicts of Interest

 

a)         Except as otherwise specified in the Public Officer Prohibited Activities Act [50 ILCS 105], no officer of a State agency or member of a State agency's governing board shall be directly or indirectly interested in any contract to be made by that State agency's governing board for any purposes whatsoever.

 

b)         Except as otherwise specified in the Public Officer Prohibited Activities Act, a State agency may not award a contract to an officer or employee of the State agency; a member of the State agency's governing board; a firm, partnership, association or corporation, the owner or principal owners or major officers or primary employees of which are officers or employees of the State agency or members of the governing board of the State agency; or members of the immediate family of an officer or employee of the State agency or a member of the governing board of the State agency, unless the contract is deemed essential to the State agency operations and is approved by the State agency's head and the CPO-GS.  These approvals shall be filed with the contract and shall be made part of the procurement file.

 

c)         Any State agency that has its owns policies regarding procurement conflict of interest relative to its own employees must provide notice of any potential conflict of interest to the SPO along with the State agency's policy.  This information may be used by the SPO when considering whether to award a contract.

 

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

 

Section 1.5030  Revolving Door Prohibition

 

a)         CPOs, SPOs, Procurement Compliance Monitors, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to the State agency most recently employing them in an affected position for a period of at least 6 months.  The prohibition includes but is not limited to:  lobbying the procurement process; specifying, bidding, proposing bid, proposal, or contract documents; on their own behalf or on behalf of any firm, partnership, association, or corporation. This prohibition applies to all persons who terminate an affected position on or after January 1, 1999. [30 ILCS 500/50-30]

 

b)         The CPO-GSs shall identify in writing those designees whose job, or whose position description, is at least 51% directly related to procurement. Activities directly related to procurement include, but are not limited to, drafting specifications, preparing solicitations, evaluating offers, negotiating contracts, administering contracts and supervising any of the foregoing.  This information shall be maintained for a period of at least 2 years following the end or revocation of the designation.

 

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

 

Section 1.5035  Disclosure of Financial Interests and Potential Conflicts of Interest

 

a)         Disclosures of financial interests and potential conflicts of interest shall be obtained for all submissions to a vendor portal and from all bidders, offerors, vendors, or contractors. [30 ILCS 500/50-35(a)]

 

1)         For purposes of Section 50-35(a) of the Code, "a bid, offer or response from responsive bidders, offerors, respondents, vendors, or contractors" means bids, offers, and quotes received pursuant to any source selection method, except for sole source and emergency procurements, and that has an annual value of more than $50,000.

 

2)         Disclosures are not required in sole source and emergency contracts, but shall be obtained in whole or in part when practical and when the annual value exceeds $50,000.

 

3)         Disclosures shall be obtained for small purchases exceeding $50,000 annually, except as otherwise provided in this Section.  If a small purchase could qualify as an emergency or sole source, disclosures shall be obtained when practical.

 

4)         In circumstances in which the vendor refuses or is unable to provide disclosures, the SPO may authorize the State agency to move forward with the transaction.  In granting that authorization, the State agency must provide documentation of efforts to obtain compliance in a form prescribed by the PPB and CPO-GS.

 

b)         For purposes of:

 

1)         Section 50-35(b) of the Code, "parent entity" means an entity that owns 100% of the bidding entity.

 

2)         Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

 

c)         "Distributable" or "distributive income" means the income of a company after payment of all expenses, including employee salaries and bonuses, and retained earnings that is distributed to those entitled to receive a share of that income. In the case of a for-profit corporation, distributable income means "dividends".  When calculating entitlement to distributable income, the entitlement shall be determined at the end of the company's most recent fiscal year.

 

d)         "Personal services" shall be any contract for services subject to the Code, including, by way of example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

 

e)         "Subject to federal 10K reporting" means subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934.  "10K disclosure" means a report required under section 13 or 15(d) of the Securities Exchange Act of 1934 (15 USC 78a et seq.).

 

f)         New disclosures are required on contract renewals.  New disclosures are not required for contract amendments.

 

g)         10K Disclosures

 

1)         Any vendor subject to federal 10K reporting requirements may submit its 10K to the State in satisfaction of the disclosure requirement of Section 50-35(b) of the Code. The vendor may be required to identify the specific sections or parts in the 10K disclosure containing information, if any, pertaining to those who have an ownership interest or an interest in the distributable income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State.  If the financial interest or conflict of interest information requested by the State is not in the 10K, or in a document that may be submitted to the SEC in conjunction with, or in lieu of, the 10K, then that additional documentation shall be provided as well.

 

2)         10K disclosures are available for public review.  Any potential conflict of interest identified by the public and brought to the attention of the CPO-GS or SPO shall be investigated.

 

3)         In circumstances in which a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements of the Code, the SPO or designee may consider information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure in determining whether a potential conflict of interest exists.

 

h)         Form of Disclosure

 

1)         The form of disclosure shall be prescribed by the CPO-GS and shall include at least the names, addresses and dollar or proportionate share of ownership of each person identified in this Section, their instrument of ownership or beneficial relationship, and notice of any potential conflict of interest resulting from the current ownership or beneficial relationship of each person identified in this Section having any of the following relationships:

 

A)        State employment, currently or in the previous 3 years, including contractual employment of services;

 

B)        State employment of spouse, father, mother, son or daughter, including contractual employment for services in the previous 2 years;

 

C)        Elective status: the holding of elective office in the State of Illinois, the government of the United States, any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois currently or in the previous 3 years;

 

D)        Relationship to anyone holding elective office currently or in the previous 2 years, including spouse, father, mother, son or daughter;

 

E)         Appointive office: the holding of any appointive government office of the State of Illinois, the United States of America, or any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois that entitles the holder to compensation in excess of expenses incurred in the discharge of that office currently or in the previous 3 years;

 

F)         Relationship to anyone holding appointive office currently or in the previous 2 years, including spouse, father, mother, son or daughter;

 

G)        Employment, currently or in the previous 3 years, as, or by, any registered lobbyist of the State government;

 

H)        Relationship to anyone who is or was a registered lobbyist in the previous 2 years, including spouse, father, mother, son or daughter; 

 

I)          Compensated employment, currently or in the previous 3 years, by any registered election or re-election committee registered with the Secretary of State or any county clerk in the State of Illinois, or any political action committee registered with either the Secretary of State or the Federal Board of Elections;

 

J)          Relationship to anyone, including spouse, father, mother, son or daughter, who is or was a compensated employee in the last 2 years of any registered election or re-election committee registered with the Secretary of State or any county clerk in the State of Illinois, or any political action committee registered with either the Secretary of State or the Federal Board of Elections. [30 ILCS 500/50-35(b)(1-10)]

 

2)         The disclosures required under this Section also include the name and address of each lobbyist required to register under the Lobbyist Registration Act [25 ILCS 170] and other agent of the bidder or offeror who is not identified under subsection (a) and who has communicated, is communicating, or may communicate with any State officer or employee concerning the bid or offer.  The disclosure under this subsection (h)(2) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful.  [30 ILCS 500/50-35(b-1)]

 

3)         The disclosure required under this Section must also include, for each of the persons identified in subsection (h)(1) or (2), each of the following that occurred within the previous 10 years: debarment from contracting with any governmental entity; professional licensure discipline; bankruptcies; adverse civil judgments and administrative findings; and criminal felony convictions.  The disclosure under this subsection (h)(3) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-2)]

 

i)          Intent of Disclosure

The disclosure required in subsection (h) is not intended to prohibit or prevent any contract.  The disclosure is meant to fully and publicly disclose any potential conflict to the CPO-GS, SPOs, their designees and executive officers so they may adequately discharge their duty to protect the State. [30 ILCS 500/50-35(c)]

 

1)         Determination by Procurement Officer

When an alleged conflict of interest is identified, discovered or reasonably suspected, it shall be reviewed by the CPO-GS or SPO, who will send the contract to the PPB.  The PPB shall recommend to the CPO-GS whether to allow or void the contract, bid, offer or subcontract weighing the best interest of the State of Illinois.  If the CPO-GS disagrees with the PPB's recommendation to void a contract or void a bid or offer, the Executive Ethics Commission will hold a hearing.  No contract shall be awarded before a hearing if the PPB recommends a contract or bid or offer be voided.  This written determination shall become a publicly available part of the contract, bid or proposal file.

 

2)         Requirements for Reasonable Care and Diligence

These thresholds for disclosure do not relieve the CPO-GS, SPO or their designees from reasonable care and diligence for any contract, bid, offer or proposal.  The CPO-GS, SPOs or their designees shall be responsible for using any reasonably known and publicly available information to discover any undisclosed potential conflict of interest and act to protect the best interest of the State of Illinois. [30 ILCS 500/50-35(e)]

 

3)         Inadvertent or Accidental Failure to Fully Disclose

Inadvertent or accidental failure to disclose shall render the contract, subcontract, bid, proposal or relationship voidable by the CPO-GS if he or she deems it in the best interest of the State of Illinois and, at his or her discretion, may be cause for barring from future contracts, subcontracts, bids, proposals or relationships with the State for a period of up to 2 years. [30 ILCS 500/50-35(f)]

 

4)         Intentional, Willful or Material Failure to Disclose

Intentional, willful or material failure to disclose shall render the contract, subcontract, bid, proposal or relationship voidable by the CPO-GS if he or she deems it in the best interest of the State of Illinois and shall result in debarment from future contracts, subcontracts, bids, proposals or relationships with the State for a period of not less than 2 years and not more than 10 years.  Reinstatement after 2 years and before 10 years must be reviewed and commented upon by the CPO-GS, who must rule in writing whether and when to reinstate.

 

5)         Other Procurements

In addition, all disclosures shall note any other current or pending contracts, proposals, subcontracts, leases or other ongoing procurement relationships the bidding, proposing, offering or subcontracting entity has with any other unit of State government and shall clearly identify the unit and the contract, proposal, lease or other relationship.  [30 ILCS 500/50-35(h)]

 

6)         Continuing Obligation

The contractor or bidder has a continuing obligation to supplement the disclosure required by this Section throughout the bidding process or during the term of any contract.  [30 ILCS 500/50-35(i)]

 

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

 

Section 1.5036  Disclosures of Business in Iran

 

a)         Each bid, offer or proposal submitted for a State contract, other than a small purchase, shall include a disclosure of whether the bidder, offeror or proposing entity, or any of its corporate parents or subsidiaries, within the 24 months before submission of the bid, offer or proposal had business operations that involved contracts with, or provision of supplies or services to, the Government of Iran, companies in which the Government of Iran has a direct or indirect equity share, consortiums or projects commissioned by the Government of Iran, or companies involved in consortiums or projects commissioned by the Government of Iran and:

 

1)         More than 10% of the company's revenue produced in or assets allocated in Iran involve oil-related activities or mineral extraction activities; less than 75% of the company's revenues produced or assets located in Iran involve contracts with or provision of oil-related or mineral-extraction products or services to the Government of Iran or a project or consortium created exclusively by that government; and the company has failed to take substantial action; or

 

2)         The company has, on or after August 5, 1996, made an investment of $20 million or more, or any combination of investments of at least $10 million each that in the aggregate equals or exceeds $20 million in any 12-month period, that directly or significantly contributes to the enhancement of Iran's ability to develop petroleum resources of Iran.  [30 ILCS 500/50-36(b)]

 

b)         A bid, offer or proposal that does not include the disclosure required by subsection (a) shall not be considered responsive.  An SPO may consider the disclosure when evaluating the bid, offer or proposal or awarding the contract. [30 ILCS 500/50-36(c)]

 

c)         The CPO-GS shall provide the State Comptroller with the names of each entity disclosed under subsection (a) as doing business or having done business in Iran.  The State Comptroller shall post that information on his or her official website. [30 ILCS 500/50-36(d)]

 

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

 

Section 1.5037  Vendor Registration, Certification and Prohibition on Political Contributions

 

a)         Introduction

 

1)         Illinois statute [10 ILCS 5/9-35 and 30 ILCS 500/20-160 and 50-37]:

 

A)        restricts political contributions by vendors, affiliated persons, and affiliated entities;

 

B)        requires registration with the State Board of Elections (SBEL); and

 

C)        requires solicitation and contract certifications relative to the requirements of the statutes. 

 

2)         This Section supplements requirements found in statutes and does not excuse compliance with any of those requirements.

 

b)        General Registration Requirements

 

1)         These requirements apply to contracts, bids and proposals that are subject to the Code:

 

A)        Bids/proposals referenced in this Section are those submitted in response to a competitive solicitation that is posted to the Bulletin, regardless of the value assigned to the procurement.

 

B)        Bids and proposals include pending bids and proposals.

 

C)        These requirements generally apply to a vendor whose existing State contracts have an aggregate value in excess of $50,000, or whose aggregate value of bids/proposals for State contracts exceeds $50,000, or whose aggregate value of State contracts and bids/proposals exceeds $50,000.

 

D)        This value is calculated on a calendar-year basis.

 

2)         On a calendar-year basis, each vendor or potential vendor must keep track of the value of contracts and bids/proposals.  Vendors must register with SBEL when the vendor determines that the value of the contracts and bids/proposals meets the threshold for registration.

 

3)         An "executive employee" means:

 

A)        The President, Chairman of the Board, Chief Executive Officer and/or other individuals who fulfill equivalent duties as the President, Chairman of the Board, or Chief Executive Officer; and/or

 

B)        Any employee whose compensation is determined directly, in whole or in part, by the award or payment of contracts by a State agency to the entity employing the employee, irrespective of the employee's title or status in the business entity.  For the purposes of this subsection (b)(3)(B), compensation determined directly by award or payment of contracts means a payment over and above regular salary that would not be made if it were not for the award of the contract.

 

c)          Bids and Proposals

 

1)         In order to be considered for award, a vendor who meets the requirements for registration must be registered with SBEL as of the date the bid or offer is due and shall provide a copy of the Registration Certificate or be able to produce the Registration Certificate on that date.

 

2)         If a vendor is not registered by the date the bid or offer is due, the SPO shall reject the bid or offer as non-responsive.

 

3)         Prior to award or execution of contract, the SPO or a designee of the SPO shall verify that the vendor who meets the requirements for registration has registered with SBEL and shall document vendor compliance.

 

d)         Contracts

Documentation of vendor compliance must be in the procurement file in relation to any contract for which a vendor is required to register as set forth in this subsection (d), unless the vendor certifies it is not required to register.

 

1)         For contract renewals and extensions, if the value of the renewal or extension by itself, or in combination with the contract being renewed/extended and other contracts and bids/proposals exceeds $50,000, the vendor must provide documentation of vendor compliance upon request and make the appropriate contract certification, if it has not already done so. The Registration Certificate or other evidence of vendor compliance may be provided by reference to and incorporation of the vendor's prequalification by the CPO-GS.

 

2)         A State agency shall identify in the solicitation whether the contract is estimated to exceed $50,000 annually. Vendors submitting bids or offers for master contracts estimated to exceed $50,000 annually regardless of consumption are required to register with SBEL.

 

3)         For indefinite quantity/estimated value contracts that are not estimated to exceed $50,000 annually, a vendor who is otherwise not required to register shall register with SBEL when the value of orders placed pursuant to an indefinite/estimated value contract plus all other contracts and bids/proposals exceeds $50,000.  The vendor shall register with SBEL within 10 business days after orders exceed $50,000.

 

4)         For change order, if the value of the change order, by itself or in combination with the contract being renewed plus other contracts and bids/proposals, exceeds $50,000, the vendor must provide the Registration Certificate or other evidence of vendor compliance upon request and make the appropriate contract certification, if it has not already done so.

 

5)         Any contracts mistakenly executed in violation of this Section must be amended to include the contract certifications, and the vendor must supply the Registration Certificate or other evidence of vendor compliance upon request.  If any violation by the vendor is not cured within 5 business days after receipt of notification of the violation, the contract is voidable by the State without penalty.

 

6)         Contract certification required by Section 20-160 of the Code shall be included in or added to each contract that must be filed with the State Comptroller pursuant to Section 20-80 of the Code and those written two-party contracts that need not be filed with the Comptroller.  Agencies may require written confirmation of the rule-imposed certification at any time.

 

e)         Voidable contracts

Every solicitation issued and contract executed by the State shall contain a statement that the contract is voidable under Section 50-60 if the bidder, offeror or contractor fails to comply with Section 20-160 of the Code.

 

f)         Prohibited Political Contributions

 

1)         Upon discovery of a political contribution that is potentially prohibited by Section 50-37 of the Code, the CPO shall send a letter requesting response from the business entity that made the potentially prohibited contribution within 5 business days acknowledging or denying that the contribution was prohibited.

 

2)         If the CPO determines that a political contribution was prohibited, all contracts held by the contributing business entity are voidable, and the CPO shall determine if the circumstances surrounding the prohibited political contribution warrant the voiding of any of these contracts. 

 

3)         If a business entity violates Section 50-37(b) of the Code three or more times within a 36 month period, the CPO shall void all contracts with the business entity and the business entity shall be prohibited from responding to any solicitation issued by any State agency or entering into a contract with any State agency for 3 years from the date of the last violation.

 

4)         If the CPO determines that a prohibited political contribution is grounds to suspend a business entity pursuant to Section 1.5560(b), the business entity shall have the right to a hearing pursuant to Section 1.5560(g), to be conducted in accordance with Subpart V.

 

5)         If an affiliated person or affiliated entity makes a political contribution that was prohibited, although the business entity's contracts may not be void, the affiliated person or affiliated entity violated Section 50-37 of the Code and may be subject to a misdemeanor.

 

g)         Notice

 

1)         Notice of each violation of Section 50-37 and any penalty imposed for each violation shall be published on the Bulletin and in the Illinois Register.

 

2)         The CPO shall directly notify a political committee in receipt of a prohibited political contribution that payment equal to the amount of the contribution is due the State of Illinois within 30 days after publication of the violation in the Illinois Register.

 

3)         If an amount owed by a political committee as a result of a prohibited political contribution is not paid and is deemed uncollectible for any reason, notice of the political committee's nonpayment shall be published on the Bulletin and in the Illinois Register.

 

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

 

Section 1.5038  Lobbying Restrictions

 

a)         A person or business that is let or awarded a contract is not entitled to receive any payment, compensation or other remuneration from the State to compensate the person or business for any expenses related to travel, lodging, or meals that are paid by the person or business to any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder.  [30 ILCS 500/50-39(a)]

 

b)         Disclosure

 

1)         Any bidder or offeror on a State contract that hires a person required to register under the Lobbyist Registration Act [25 ILCS 170] to assist in obtaining a contract shall:

 

A)       Disclose all costs, fees, compensation, reimbursement and other remunerations paid or to be paid to the lobbyist related to the contract;

 

B)        Not bill or otherwise cause the State of Illinois to pay for any of the lobbyist's costs, fees, compensation, reimbursements or other remuneration;

 

C)        Sign a verification certifying that none of the lobbyist's costs, fees, compensation, reimbursements or other remuneration were billed to the State.

 

2)         The information in subsection (b)(1)(A), along with all supporting documents, shall be filed with the agency awarding the contract and with the Secretary of State.  The CPO-GS shall post this information, together with the contract award notice, on the Bulletin. [30 ILCS 500/50-38(b)]

 

c)         No person or entity shall retain a person or entity required to register under the Lobbyist Registration Act to attempt to influence the outcome of a procurement decision for compensation contingent in whole or in part upon the decision or procurement.  Any person who violates this subsection (c) is guilty of a business offense and shall be fined not more than $10,000.  [30 ILCS 500/50-38(c)]

 

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

 

Section 1.5039  Procurement Communication Reporting Requirement

 

a)         Reporting Requirement

Any written or oral communication received by a State employee who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract or a project, shall be reported to the Procurement Policy Board in accordance with rules of the Executive Ethics Commission (2 Ill. Adm. Code 1620). [30 ILCS 500/50-39(a)]

 

b)         Excepted Communications

 

1)         These communication do not include the following:

 

A)        statements made by a person publicly in a public forum.  However, communications made in a public forum, if made privately, must be reported;

 

B)        statements regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter; and

 

C)        statements made by a State employee to:

 

i)          the State employee's Agency Head;

 

ii)         other employees of that agency;

 

iii)        employees of the Executive Ethics Commission, including the CPO-GS, SPOs, PCMs and other CPO-GS staff; or

 

iv)        an employee of another State agency who, through the communication, is either:

 

•  exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the purchasing agency or the appropriate SPO; or

 

•  exercising oversight, supervisory, or management authority over the procurement in the normal course of business and as part of official responsibilities;

 

 

D)        unsolicited communications providing general information about products, services, or industry best practices before those products or services become involved in a procurement matter;

 

E)        communications received in response to procurement solicitations, including, but not limited to, vendor responses to a:

 

i)             RFI;

 

ii)            RFP;

 

iii)           Request for Qualifications;

 

iv)           IFB;

 

v)            small purchase, sole source, or emergency solicitation; or

 

vi)           questions or answers posted to the Illinois Procurement Bulletin to supplement the procurement action, provided that the communications are made in accordance with instructions contained in the procurement solicitation, procedures, or guidelines;

 

D)        communications that are privileged, protected, or confidential under law; and

 

E)         communications that are part of a formal procurement process as set out by statute, rule, or the solicitation, guidelines, or procedures, including, but not limited to:

 

i)          the posting of procurement opportunities;

 

ii)         the process for approving a procurement business case or its equivalent;

 

iii)        fiscal approval;

 

iv)        submission of bids;

 

v)         the finalization of contract terms and conditions with an awardee or apparent awardee; and

 

vi)        any other similar formal procurement process.

 

2)         The provisions of this Section shall not apply to communications regarding the administration and implementation of an existing contract, except communications regarding change orders or the renewal or extension of a contract.

 

3)         No trade secret or other proprietary or confidential information shall be included in any communication reported to the Procurement Policy Board. [30 ILCS 500/50-39(b)]

 

c)         When an oral communication made by a person required to register under the Lobbyist Registration Act is received by a State employee that is covered under this Section, all individuals who initiate or participate in the oral communication shall submit a written report to that State employee that memorializes the communication and includes, but is not limited to, the items listed in Section 50-39 of the Code.  [30 ILCS 500/50-39(c)]

 

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

 

Section 1.5055  Supply Inventory

 

State agencies shall manage their inventory of supplies in compliance with the 12-month inventory restriction of Section 50-55 of the Code.

 

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

 

Section 1.5060  Prohibited Bidders and Contractors

 

a)         Unless otherwise provided, no business shall bid or enter into a contract or subcontract if the business or any officer, director, partner, or other managerial agent of the business has been convicted of a felony under the Sarbanes-Oxley Act of 2002 (PL 107-204) or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 [815 ILCS 5] for a period of 5 years from the date of conviction.

 

b)         Every bid submitted to and contract executed by the State and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, contractor, or subcontractor, respectively, that the bidder, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the chief procurement officer shall declare the related contract void if any of the certifications pursuant to this subsection (b) are false. [30 ILCS 500/50-10.5]

 

c)          A person or business that assists a State agency with writing specifications, developing evaluation criteria, or participating in evaluations of bids or proposals shall not submit a bid or proposal or receive a contract or subcontract for that procurement.

 

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

 

Section 1.5065  Lead Poisoning Prevention Act Violations

 

Owners of residential buildings who have committed a willful or knowing violation of the Lead Poisoning Prevention Act [410 ILCS 45] are prohibited from doing business with the State of Illinois or any State agency, or subcontracting, until the violation is mitigated.  [30 ILCS 500/50-14.5]

 

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

SUBPART Q: CONCESSIONS

 

Section 1.5310  Concessions

 

a)         A concession is an authorization allowing use of property for the purpose of selling directly or indirectly to the public. Concessions also include the assignment, license, sale or transfer of interests in or rights to discoveries, inventions, patents or copyrightable works.

 

b)         All concessions of State property shall be awarded in accordance with the requirements of Article 20 of the Code.  Contracts shall be awarded to the highest and best bidder or offeror.

 

c)         Concession contracts shall be reduced to writing and shall include terms and conditions and concessionaire qualification requirements applicable to purchase contracts.

 

d)        All proposed concession contracts must be filed with PPB in compliance with Section 5-30 of the Code.

 

e)         Value for a concession contract means the estimated expected vendor's gross receipts resulting from the contract.

 

f)         All concession contract awards shall be published, along with the value of the contract to the vendor.

 

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

 

Section 1.5350  No-cost Contracts

 

a)         A no-cost contract is a contract that is paid for by those who use the supplies or services provided in the contract, not the State agency that procured the no-cost contract.  An example of a no-cost contract would be a State agency's contract for fingerprint background checks that potential professional licensees must use, at their cost, to obtain a background check as part of their professional license application.

 

b)         All no-cost contracts shall be awarded in accordance with the requirements of Article 20 of the Code.

 

c)         Multiple awards are allowed. Persons may use any no-cost contract or no-cost joint purchase contract without further methodology for determining which vendor from among the multiple awardees will receive an order.

 

d)         Value for a no-cost contract means the estimated expected vendor's gross receipts resulting from the contract.

 

e)         All no-cost contract awards shall be published, along with the value of the contract to the vendor.

 

(Source:  Added at 46 Ill. Reg. 10208, effective June 2, 2022)

SUBPART R: COOPERATIVE PURCHASING

 

Section 1.5400  General

 

a)         The CPO-GS may establish a joint purchasing and cooperative purchasing program. [30 ILCS 525/2]

 

b)         This Subpart applies when the CPO-GS or a State agency and one or more Illinois governmental units, non-Illinois governmental units, qualified not-for-profit agencies, or members of a group purchasing organization, consortium, or cooperative, aggregate their needs to jointly procure supplies or services.

 

c)          This Subpart describes and implements approved methods and requirements of source selection using governmental joint purchasing and non-governmental joint purchasing.

 

d)         In the event of a conflict between this Subpart and the other Subparts, when the CPO-GS or a State agency and one or more Illinois governmental units, non-Illinois governmental units, qualified not-for-profit agencies, or members of a group purchasing organization, consortium or cooperative jointly procure supplies or services, this Subpart controls.

 

e)         All joint and cooperative purchasing or procurement activities and contracts of the CPO-GS or a State agency must be authorized by the CPO-GS or designee, or must be approved by the CPO-GS or designee.  All requests for joint purchasing authorization, at a minimum, shall state the parties to the joint or cooperative purchase and the availability of the resulting contract to other governmental units or qualified not-for-profit agencies.  

 

f)         Protests

 

1)         When the CPO-GS or a State agency is the lead State entity, any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-submission conference, and any decision to reject a late bid or offer.

 

2)         When the CPO-GS or a State agency is the lead State entity, any person who has submitted a bid or offer may protest a decision to reject that person's bid or offer, or award to another bidder or offeror or person who submits a quote or submission.

 

3)         When the CPO-GS or a State agency makes a business decision to piggyback, rather than use another procurement method, the piggyback cannot be protested.

 

g)         All contracts shall state the parties to the joint purchase and the availability of the resulting contract to governmental units and/or qualified not-for-profit agencies.

 

h)         A procurement file shall be kept for all joint purchases, including, but not limited to, release off a joint purchase master contract.  In addition to the requirements of Section 1.2080, as applicable, the procurement file shall contain the following:

 

1)         Except for piggyback and a release off a multiple award joint purchase master contract, an intent to participate in a joint purchase (which may be encompassed in the solicitation or may be a stand-alone document) and the CPO-GS' authorization for the joint purchase.

 

2)         For piggyback, the CPO-GS' authorization.

 

3)         For a release off a multiple award joint purchase master contract, the SPO's approval.

 

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

 

Section 1.5405 Definitions

 

As used throughout this Subpart, terms defined in the Governmental Joint Purchasing Act shall have the same meaning as in that Act and as further defined in this Section, and each term listed in this Subpart shall have the meaning set forth unless its use clearly requires a different meaning.

 

"Act" – The Governmental Joint Purchasing Act [30 ILCS 525].

 

"Competitive Solicitation Process" − The solicitation of two or more sources by public notification for the same or substantially similar requirements, unless otherwise provided in this Subpart.

 

"Cooperative" or "Consortium" – A group of purchasing entities that come together to purchase selected products and services.

 

"Group Purchasing Organization" − Purchasing by an organization created by groups of purchasers in related areas of endeavor who come together and form a purchasing organization, including hospitals, universities, school districts and airports.

 

"Governmental Joint Purchasing" − Joint purchasing in which the entity conducting the procurement is an Illinois governmental unit or a non-Illinois governmental unit.

 

"Illinois Governmental Unit" − The State of Illinois, any State agency as defined in Section 1-15.100 of the Code, officers of the State of Illinois, any public authority in Illinois that has the power to tax, or any other public entity created by Illinois statute, including any division or department.

 

"Joint Purchasing" − Purchasing in which two or more Illinois governmental units, non-Illinois governmental units, qualified not-for-profit agencies, or members of a group purchasing organization, cooperative or consortium combine their needs and requirements.

 

"Joint Purchase Contract" – A definite quantity or indefinite quantity contract awarded by two or more specifically named governmental units against which subsequent orders may be placed to meet the needs of the two or more specifically named governmental units.

 

"Joint Purchase Master Contract" – A definite quantity or indefinite quantity contract awarded in cooperation with or by the CPO-GS pursuant to the Act against which subsequent orders may be placed to meet the needs of a governmental unit or qualified not-for-profit agency.

 

"Lead State Entity" − An Illinois governmental unit or non-Illinois governmental unit conducting the competitive procurement process.

 

"Multiple Award" − An award made to two or more bidders or offerors for similar supplies or services, as determined by the CPO-GS or designee.

 

"Non-governmental Joint Purchasing" − Purchasing in which the entity conducting the procurement is not an Illinois governmental unit or non-Illinois governmental unit.

 

"Non-Illinois Governmental Unit" − The United States, a department or agency as defined by 18 USC 6, any of the 50 states of the United States, any agency of the 50 states of the United States, any public authority in one of the 50 states of the United States that has the power to tax, or any other public entity created by the statutes of one of the 50 states of the United States.

 

"Participant State Entity" − CPO-GS or a State agency that joins the procurement efforts of the lead state entity.

 

(Source:  Added at 46 Ill. Reg. 10208, effective June 2, 2022)

 

Section 1.5420  Governmental Joint and Cooperative Purchasing

 

a)         The CPO-GS or designee may authorize any State agency to purchase supplies or services jointly with one or more Illinois governmental units, non-Illinois governmental units, or a group purchasing organization or cooperative or consortium of governmental units.

 

b)         When the CPO-GS or a State agency is the lead state entity, all joint purchases shall be conducted as a small purchase, invitation for bids (IFB), request for proposals (RFP), or sole source or emergency purchase in accordance with the Code and this Part. 

 

1)         The CPO-GS may authorize a multiple award for IFB, RFP or concessions that are conducted as an IFB or RFP.

 

2)         The solicitation, small purchase description, or sole source or emergency purchase justification shall state the intended availability of the resulting contract.

 

3)         An emergency purchase shall follow Section 1.2030, but the notice shall, at a minimum, provide that the CPO-GS authorize the joint purchase and the resulting availability of the contract.

 

4)         Sole source shall follow Section 1.2025, but the notice shall, at a minimum, provide that the CPO-GS authorize the joint purchase and the resulting availability of the contract.

 

5)         The notice of award shall state the intended availability of the resulting contact (for example, all governmental units and qualified not-for-profit agencies, limited to named State agencies, limited to departments within governmental units).

 

6)         When authorizing the joint purchase, the CPO-GS may designate the availability of the resulting contract (for example, all governmental units and qualified not-for-profit agencies, limited to named agencies, limited to departments within governmental units).

 

7)         No-cost contracts conducted pursuant to an IFB shall be awarded to the vendors who provide the lowest priced bids.

 

8)         No-cost contracts conducted pursuant to an RFP shall be awarded to the vendors who provide the highest overall scores.

 

c)         The CPO-GS or a State agency may be a participant State entity except as otherwise provided in this Subpart.

 

1)         When the CPO-GS or a State agency is a participant with an Illinois constitutional officer, another CPO as defined in Section 10-20 of the Code or another State agency that is the lead state entity, the joint purchase may be conducted as a small purchase, IFB, RFP, or sole source or emergency purchase, in accordance with the Code.

 

2)         When the CPO-GS or a State agency is a participant with an Illinois governmental unit or non-Illinois governmental unit that is not subject to the jurisdiction of the CPO-GS, is not an Illinois constitutional officer, or is not a CPO as defined in Section 10-20 of the Code, the joint purchase shall be conducted as an IFB or RFP.

 

3)         When the CPO-GS or a State agency is a participant State entity with an Illinois governmental units or a non-Illinois governmental unit, not including another CPO as defined in Section 10-20 of the Code or an Illinois constitutional officer, the solicitation and award shall be published to the Bulletin with at least the following:

 

A)        Information as to where the lead state entity's solicitation may be found.

 

B)        Closing date of the lead state entity's procurement.

 

C)        Publication of the lead state entity's award.

 

4)         The CPO-GS may authorize a multiple award.

 

5)         A State agency or CPO-GS contract shall not be executed until the lead state entity executes a contract that makes the contract available to other governmental units.

 

6)         A State agency or CPO-GS shall not execute a contract that results from a procurement with a group purchasing organization, consortium or cooperative until the vendor has an active registration in a vendor portal and a registration in the CPO-GS eProcurement system.

 

d)         Piggyback

 

1)         The CPO-GS or a State agency may piggyback off a contract that has already been procured, if the CPO-GS determines it is in the best interest of the State, by one of the following:

 

A)        Federal agency;

 

B)        Consortium or cooperative of governmental units; or

 

C)        General Services Administration.

 

2)         When the CPO-GS or a State agency piggybacks, the contract award shall be published before use of the contract.

 

3)         When the CPO-GS or a State agency piggybacks, the awarded vendor shall have an active registration in vendor portal and a registration in the CPO-GS' eProcurement system.

 

e)         Multiple Award

 

1)         Supplies and services may be solicited with the intent to make multiple awards. The solicitation must state this intent. When the CPO-GS or a State agency is the lead state entity, the solicitation must describe the type of multiple award in detail. 

 

2)         Types of Multiple Awards

 

A)        Progressive (Primary with Alternates)

A multiple award may be made to a primary and one or more alternate vendors when there is a need for multiple vendors to ensure immediate performance.  The primary vendor shall have first refusal for all orders with others contacted in progressive order.  Ranking of the alternates shall be by price or value depending on the methodology (IFB or RFP) used in the solicitation.  Selection to meet the particular need shall be by low price or best value as appropriate to the underlying solicitation.  If appropriate and within legal requirements, an alternate progressive award for the same items may be made to promote statutory preferences, goals, policies and programs (e.g., small business set-aside). 

 

B)        Geographical

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

 

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

 

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

 

C)        Prequalified Pool of Vendors

 

i)          Conditions for Use. When it may be more efficient or more appropriate, based on the nature of the supply or service, the CPO-GS or a State agency may issue a solicitation to identify vendors who meet the criteria for the prequalified pool.  Reasons for use of this alternative include, but are not limited to, the need for information technology or telecommunications supplies or services, or to establish a pool of qualified vendors and then select from that pool as needs arise. 

 

ii)         Request for Qualifications. Qualifications shall be solicited by seeking statements of the qualifications from vendors to determine their inclusion in a prequalified pool. The qualifications submitted to the prequalified pool describe the specific supplies or services the CPO-GS or State agency require that the potential vendor can fulfill.

 

iii)        Public Notice. Public notice of the Request for Qualifications shall be published in the Bulletin at least 14 days before opening of qualifications.

 

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

 

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

 

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

 

v)         Evaluation Factors. The Request for Qualifications shall contain the factors and subfactors, if any, to be used in determining if a vendor is prequalified to provide the category of supplies or services. These factors and subfactors, if any, include, but are not limited to, responsibility, any necessary experience, any necessary technical knowledge, any required certification or accreditation, and financial stability.

 

vi)        Discussion with Responsible Vendors and Revisions of Qualifications. As provided in the Request for qualifications, discussions may be conducted with responsible vendors who submit qualifications determined to be reasonably susceptible of being prequalified for clarifying and assuring full understanding of and responsiveness for prequalification. Those vendors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of qualifications. Revisions may be permitted after submission and before prequalification. In conducting discussions, there shall be no disclosure of any information derived from qualifications submitted by other vendors. If information is provided to any vendor by the State, it shall be provided to all vendors.

 

vii)       Prequalified Pool. A multiple award may be made for the prequalified pool when multiple vendors are prequalified in response to a Request for Qualifications. Vendors shall be prequalified in writing, taking into consideration the evaluation factors set forth in the Request for Qualifications. The procurement file shall contain the basis on which each vendor is determined to be prequalified.

 

viii)      Submissions to the Prequalified Pool. Each time the CPO-GS or State agency has a need for supplies or services from the prequalified pool, the CPO-GS or State agency shall provide to each member of the prequalified pool a document that describes in detail the supplies or services needed and the selection criteria the CPO-GS or State agency will use to make an award. The prequalified pool shall have at least 5 days to respond with a submission that includes the price or value for the supplies or services described in the proposal.

 

ix)        Discussion with the Prequalified Pool and Revisions to Quotation. As provided in the Request for Qualifications, the State's detail of supplies or services may be discussed with members of the prequalified pool to clarify and assure full understanding of, and responsiveness to the request for the vendor submission. Each member of the prequalified pool shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals. Revisions may be permitted after submission and before award for obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competitors in the prequalified pool. If any other information is disclosed to any member of the prequalified pool, it shall be provided to all members of the prequalified pool.

 

x)         Award. Award shall be made to the responsible prequalified member of the pool whose proposal is determined in writing to be the most advantageous to the State, taking into consideration the selection criteria set forth in the vendor's written submission to the prequalified pool. The procurement file shall contain the basis on which each award is made. If a vendor other than the lowest price or value vendor is awarded the contract, the CPO-GS or State agency shall publish in the Bulletin the reason for awarding to other than the lowest price or value vendor.

 

xi)        Every request for procurement under this subsection (e)(2)(C) shall provide a method for allowing additional vendors to become part of the prequalified pool after its creation, which shall include additions to the prequalified pool at least annually.

 

xii)       This Section shall not apply to a construction agency in the procurement of construction or construction-related materials.

 

D)        Multiple Award from a Cooperative, Consortium, or Group Purchasing Organization

 

i)          A cooperative, consortium, or group purchasing organization may make a contract award to two or more vendors.  The CPO-GS or State agency may enter into a contract with the vendors awarded a contract by the cooperative, consortium, or group purchasing organization. 

 

ii)         Order. An order shall be placed with a multiple award vendor whose quotation is determined in writing to be the most advantageous (lowest cost or best value) to the State, taking into consideration the selection criteria set forth in the request for quotation.  If the lowest priced or most advantageous vendor may be determined without a written request for quotation, an order may be made with the low cost or best value vendor.  The procurement file shall contain the basis on which each order is made. If a vendor other than the lowest price or best value vendor receives an order, the CPO-GS or State agency shall provide justification, such as compatibility with existing supplies or services in the procurement file.

 

3)         Multiple award contracts shall be considered joint purchase master contracts.  Supplies or services ordered under these joint purchase contracts shall be documented on the release off a master that refers to that joint purchase master contract.  A multiple award contract is not a requirements contract and does not guarantee any level of ordering activity by the State agency.

 

4)         If a particular quantity requirement arises that exceeds a State agency's normal requirement or a quantity or amount specified in the contract, a separate solicitation may be issued.

 

f)         Orders Off of a Multiple Award Joint Purchase Master Contract

 

1)         If multiple vendors are awarded a State contract from the same cooperative, consortium, or group purchasing organization procurement, the CPO-GS or a State agency shall choose the vendor that is low cost or provides the best value to the CPO-GS or State agency.

 

A)        When there are multiple vendors awarded for an information technology or telecommunications contract or a contract that primarily provides services, the CPO-GS or a State agency shall request informal quotes to determine which vendor best meets its need and is the low cost or best value, if this determination cannot be made based on the offerings, terms and conditions, and pricing in the contract of the multiple vendors.

 

B)        An informal quote is unnecessary if the State agency's justification would otherwise meet the requirements of a sole source or sole economically feasible joint purchase. 

 

C)        The order must be placed with the vendor that best meets the CPO-GS' or State agency's need and is the low cost or best value.  

 

D)        For the term of the joint purchase master contract, including any lease term, related and updated supplies may be limited to the selected vendor for the initial order.

 

2)         When the CPO-GS or a State agency is the lead state entity, the solicitation must describe the type of the methodology for determining which vendors from among the multiple awardees will receive an as-needed individual order off of the joint purchase master contract.

 

g)         State and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to use each others' procurement contracts.  This authority is governed by this Subpart and the Governmental Joint Purchasing Act.

 

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

 

Section 1.5440  Non-Governmental Joint Purchasing

 

a)         If the CPO-GS determines it is in the best interest of the State, a State agency may piggyback off a contract that has already been procured by one of the following:

 

1)         Cooperative or consortium of educational, medical, research, or similar entities; or

 

2)         Group purchasing organization of which the CPO-GS or State agency is a member or affiliate.

 

b)         When the CPO-GS or a State agency piggybacks, the contract award shall be published before use of the contract.

 

c)         When the CPO-GS or a State agency piggybacks, the awarded vendor shall be registered in a vendor portal and have a registration in the CPO-GS' eProcurement system.

 

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

 

Section 1.5460  No Agency Relationship

 

In any cooperative or joint purchase, each participant must issue its own purchase order, accept its own deliveries, and make its own payments.  Neither the CPO-GS nor any State agency shall have any obligation to the vendor for payment of orders placed by other governmental units or qualified not-for-profit agencies.

 

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

 

Section 1.5465  Consortiums, Cooperatives, and Group Purchasing Organizations

 

The CPO-GS shall review the practices and processes of cooperatives, consortiums, and group purchasing organizations. The review may include the following:

 

a)         Financial disclosures and conflicts of interest.

 

b)         Promotes contracts established by utilizing a competitive procurement practice.

 

c)         Publicly available information regarding solicitation, award, and post-award documents, including contract, pricing and contract amendments.

 

d)         No requirement on marketing the contracts of the cooperative, consortium, or group purchasing organization.

 

e)         No requirement to execute contracts with vendors of the cooperative, consortium, or group purchasing organization.

 

(Source:  Added at 46 Ill. Reg. 10208, effective June 2, 2022)

 

Section 1.5470  Bulletin Content

 

a)         In addition to requirements in other Sections, at a minimum, the Notice of Solicitation shall state the parties to the joint purchase and the intended availability of the resulting contract.

 

b)         In addition to requirements of other Sections, at a minimum, the Notice of Award shall state the availability for the resulting contract.

 

(Source:  Added at 46 Ill. Reg. 10208, effective June 2, 2022)

 

Section 1.5475  Vendor Portal and eProcurement

 

a)         Vendors with a cooperative, consortium, or group purchasing organization contract shall have an active registration in a vendor portal.  These vendors with subcontractors that will deliver services or supplies to the CPO-GS or State agencies shall have an active registration in a vendor portal.

 

b)         Vendors with a cooperative, consortium or group purchasing organization contract shall have a registration in the eProcurement system used by the CPO-GS.

 

c)         The CPO or designee may waive the requirements of this Section.

 

(Source:  Added at 46 Ill. Reg. 10208, effective June 2, 2022)

 

Section 1.5510  Complaints Against Vendors (Repealed)

 

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

 

Section 1.5520  Suspension (Repealed)

 

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

 

Section 1.5530  Resolution of Contract Controversies (Repealed)

 

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

 

Section 1.5540  Violation of Law or Rule (Repealed)

 

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

SUBPART S: PROTESTS

 

Section 1.5550  Protests

 

a)         Procurement-Related Protests Allowed

 

1)         Any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-submission conference, and any decision to reject a late bid, proposal or response.

 

2)         Any person who has submitted a bid, proposal or response may protest a decision to reject that person's bid, proposal, or response or the decision to award to another bidder, offeror or respondent.

 

b)         Protest Review Officer

The CPO-GS may appoint one or more Protest Review Officers (PRO) to consider the procurement-related protests and make a recommendation to the CPO-GS for resolution of the protest.  The CPO-GS may adopt the recommendation or take other action.

 

c)         Submission of Protest

 

1)         A protesting party must submit a protest in writing to the PRO identified in the solicitation document. Fax and email qualify as writing, but the PRO does not guarantee receipt using those means.

 

2)         The protest must be physically received by the PRO at the location specified.  A postmark or other carrier mark prior to the due date and time is not sufficient to show physical receipt.

 

A)        In regard to the solicitation notice or solicitation document including specifications, a protest must be received within 14 days after the date the solicitation was posted to the Bulletin and must be received by the PRO at the designated address before the date for opening bids, proposals or responses.

 

B)        In regard to rejection of individual bids, proposals or responses or awards, the protest must be received by close of business no later than 14 days after the protesting party knows or should have known of the facts giving rise to the protest to ensure consideration, and, in any event, must be received before execution of the applicable contract. 

 

C)        The PRO, for good cause shown, or when he or she determines that a protest raises issues significant to the procurement system, may consider an untimely protest.  Good cause may include, but is not limited to, instances in which the procurement file is not available in a timely manner to interested parties or when a FOIA request has not been responded to by a State agency in full or in part.

 

3)         Any notice posted to the Bulletin establishes the "known or should have known" date for the subject matter of the notice. 

 

4)         Protests must be clearly marked on the delivery container or the e-mail subject line.

 

5)         No formal briefs or other technical forms of pleading or motion are required.  Protest submissions should be concise and logically arranged, and should clearly state legally sufficient grounds of protest.  The written protest shall include as a minimum the following:

 

A)        the name and address of the protesting party;

 

B)        identification of the procurement, and, if a contract has been awarded, its number or other identifier;

 

C)        a statement of reasons for the protest specifically identifying any alleged violation of a procurement statute, a procurement rule or the solicitation itself, including the evaluation and award (conclusions with supporting facts and arguments may not be sufficient);

 

D)        supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated. If submitting the protest by fax, supporting documentation over 20 pages in length may not be included without authorization; and

 

E)        specific relief sought.

 

6)         The protesting party shall clearly identify any information in the protest that is confidential, proprietary or a trade secret.

 

d)         Requested Information

 

1)         The State agency must supply a response to the protest within the time period set forth by the PRO.  If a State agency fails to comply with this request, the PRO may consider the protest on the basis of available information or may recommend to the CPO-GS that the relief requested in the protest be granted.

 

2)         The protesting party must supply any additional information requested by the PRO within the time periods set in the request.  If the protesting party fails to comply with this request, the PRO shall consider the protest on the basis of available information or may deny the protest.

 

3)         The PRO may request that an interested party supply additional information within the time period set in the request.  For purposes of a protest, an "interested party" means an actual or prospective bidder, offeror or respondent whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.

 

e)         Stay of Procurements During Protest

Unless the CPO-GS determines the needs of the State require an immediate execution of a contract, the following apply:

 

1)         When a protest has been timely filed and before an award has been made, the SPO shall make no award of the contract until the protest has been resolved. 

 

2)         If timely received but after award, the award shall be stayed without penalty to the State.

 

f)         Resolution

The CPO-GS will resolve the protest by means of a written determination.  The PRO will make a recommendation to the CPO-GS as expeditiously as possible after receiving all relevant, requested information.  In determining the appropriate recommendation, the PRO shall consider the seriousness of the procurement deficiency, the degree of prejudice to other parties or to the integrity of the competitive procurement system, the good faith of the parties, the urgency of the procurement, and the impact of the recommendation on the State agency's mission.  The recommendation may include, but is not limited to:

 

1)         Affirming the State agency's initial decision, in whole or part;

 

2)         Directing the State agency to issue a new solicitation;

 

3)         Directing the State agency to award a contract consistent with statute and rule; or

 

4)         Directing such other action as is necessary to promote compliance with statute or rule.

 

g)         Effect of Judicial Proceedings

If an action concerning the protest has commenced in a court or administrative body, the CPO-GS may defer resolution of the protest pending the judicial or administrative determination.

 

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

SUBPART T: SUSPENSION AND DEBARMENT

 

Section 1.5560  Suspension and Debarment

 

a)         This Subpart applies to all suspensions or debarments of vendors from consideration for award of contracts and being a subcontractor under the Code.  For the purposes of this Subpart, all references to "vendors" includes subcontractors.

 

b)         Causes for Suspension or Debarment.  A vendor may be suspended or debarred from participation due to acts or omissions that indicate that the vendor lacks integrity and honesty in the conduct of business or the performance of contracts.  Acts or omissions that indicate the lack of business integrity and honesty include, but are not limited to: 

 

1)         Fraud, bribery, embezzlement, theft, collusion, conspiracy, anti-competitive activity, or other misconduct and offenses prohibited by law, whether or not any such misconduct or offense is in connection with a State contract;

 

2)         Making any false statement, including in a registration in a vendor portal and the e-Procurement system;

 

3)         Violating any rule or procurement procedure or making a false statement in connection with this Part or procurement procedures;

 

4)         Making a false statement, representation, claim or report regarding the character, quality, quantity, or cost of any work performed or supplies or materials furnished in connection with a contract or subcontract administered or supervised by a State agency; and

 

5)         Being debarred or suspended by another State agency; the United States; a department or agency as defined by 18 USC 6; any of the 50 states of the United States; any State agency of the 50 states of the United States; any public authority in one of the 50 states of the United States that has the power to tax; or any other public entity created by the statutes of one of the 50 states of the United States.

 

c)         Suspension Process

 

1)         Any vendor the CPO-GS proposes to suspend pursuant to this Subpart will be furnished written notice by certified or registered mail.  Proof that notice was dispatched by means reasonably calculated to be received by the prescribed date shall be prima facie proof that the notice was timely received.

 

2)         The notice of proposed suspension will include the following:

 

A)        The basis for the proposed suspension;

 

B)        A clear and concise statement of the facts and circumstances on which the proposed suspension is based;

 

C)        The legal authority and jurisdiction under which the action is taken;

 

D)        The consequences of failure to respond to the notice;

 

E)        The right to request a hearing.

 

3)         A notice of proposed suspension may be amended at any time.

 

4)         A copy of the written notice of proposed suspension will be provided to the Procurement Policy Board within 7 days after vendor notification.

 

5)         Vendor Response and Request for Hearing

 

A)        Any vendor who receives a notice of proposed suspension may, within 30 days after receipt of the notice, request a hearing.  A vendor that does not request a hearing within 30 days after receipt shall be deemed to have waived any right to a hearing and will be subject to immediate suspension.

 

B)        The vendor may file a written answer to a notice of proposed suspension not later than 20 days prior to the hearing date, but shall not be required to file an answer.  The answer may include affirmative defenses.

 

C)        Form of Documents

 

i)          Documents filed by the vendor shall clearly show the file hearing number and the title of the proceeding in connection with which they are filed, on every page of the document.

 

ii)         Each document filed shall be signed by the vendor or his or her authorized representative or attorney.

 

6)         Hearing Procedures.  The Hearing Officer has the authority to conduct and preside over the hearing, to take all necessary action to avoid delay, to maintain order, to ensure compliance with all notice requirements, and to ensure the development of a clear and complete record.  The Hearing Officer shall have all powers necessary to conduct a fair and impartial hearing, including, but not limited to, the power to:

 

A)        Regulate the course of hearings, set the time and place for continued hearings, fix times for filing of documents and, in general, conduct the proceedings according to the provisions of this Subpart;

 

B)        Interview parties and direct parties to provide responses, limit the number of times any party may testify, limit repetitious or cumulative testimony, and set reasonable limits on the amount of time each witness may testify;

 

C)        Dispose of procedural requests or similar matters;

 

D)        Make a recommendation to the CPO-GS regarding the matters;

 

E)        Extend the date of any hearing, should the circumstances warrant that action;

 

F)         Afford parties the opportunity to present witnesses;

 

G)        Recommend the appropriate length of a suspension in cases in which it has been established by admission, conviction, or judgment of a court of competent jurisdiction that the vendor engaged in conduct warranting a suspension, or when it has been established, by findings made, in accordance with law or rule, by another public agency, that the vendor has engaged in conduct warranting a suspension; however, the Hearing Officer shall not receive evidence relating to the merits of the prior judicial or administrative decision or findings;

 

H)        Make a report containing findings of fact and conclusions of law.  The Hearing Officer shall transmit the entire record, including those findings and conclusions, to the CPO-GS for review and final decision;

 

I)         Permit the recording of testimony at the hearing by a certified court reporter or a mechanical recording device (need not be transcribed unless requested by a party, who shall pay for the transcription of the portion requested).

 

7)         Determination

 

A)        Based on the record as a whole, the CPO-GS will determine any suspension action to be taken.

 

B)        In assessing the record, consideration will be given to the reasonableness in view of surrounding circumstances, corroboration or lack thereof as to important allegations, and inferences that may be drawn from the existence or absence of affirmative facts.  This assessment may include a review of documents such as contracts, deliverables, invoices, inspection reports, and correspondence.

 

C)        Upon reaching a final decision, the CPO-GS will notify the vendor of the determination and will set forth the period during which the vendor shall be suspended from bidding or submitting an offer on State contracts, or holding a State contract.  Any interim suspension shall be deducted from the period of final suspension.

 

D)        Parties will be sent a copy of the final decision by mail, postage prepaid, certified or registered, addressed to the last known address of the person, affiliated person, or affiliated entity involved.  A copy of the final decision will be mailed to each party and to all attorneys of record.

 

8)         Suspension Coverage.  A suspension applies to the vendor set forth in the notice of suspension. 

 

A)        If the vendor named in the notice of suspension is an individual, the suspension may also apply to any other vendor:

 

i)          In which the suspended individual is an officer or director, or holds any other substantial leadership position, until such time as the individual is severed from the vendor; or

 

ii)         In which the suspended individual has controlling legal or beneficial financial interest, until the suspended individual's interests are divested.

 

B)        In addition to all covered entities and affiliates, the suspension also applies to any entity or affiliate that is formed or organized by a suspended vendor after the date a suspension action was entered.

 

C)        Any suspended vendor, for the term of the suspension, is ineligible to participate as a vendor, material supplier, or lessor of equipment on or in connection with contracts awarded by the State or subcontracts of contracts awarded by the State.

 

D)        a suspension will also be deemed a finding of lack of responsibility.

 

E)        Exception. A suspension action is final, except that the period of time during which a contractor or subcontractor is suspended may be decreased, delayed or rescinded at any time, if the CPO-GS determines it is in the best interest of the State.

 

F)         The CPO-GS may suspend a vendor for a period of time commensurate with the seriousness of the offense, but for no more than 10 years.  The suspension will be effective 7 calendar days after receipt of the final notice. 

 

d)        Debarment Process

 

1)         The CPO-GS may debar a vendor.  Debarment is the permanent suspension of a vendor from doing business with the State.  A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law.  Bids, proposals or responses received from the debarred vendor or proposing the use of a debarred subcontractor will not be considered as responsive.  The debarment will be effective 7 calendar days after receipt of notice, unless an objection is filed.  If an objection is filed, the debarment shall not become effective until the evaluation of the objection is completed.

 

2)         Any vendor the CPO-GS proposes to debar pursuant to this Subpart will be furnished written notice by certified or registered mail.  Proof that notice was dispatched by means reasonably calculated to be received by the prescribed date shall be prima facie proof that the notice was timely received.

 

3)         The notice of proposed debarment will include the following:

 

A)        The basis for the proposed debarment;

 

B)        A clear and concise statement of the facts and circumstances on which the proposed debarment is based;

 

C)        The legal authority and jurisdiction under which the action is taken;

 

D)        The consequences of failure to respond to the notice; and

 

E)        The right to request a hearing.

 

4)         A notice of proposed debarment may be amended at any time.

 

5)         A copy of the written notice of proposed debarment will be provided to the Procurement Policy Board within 7 days after vendor notification.

 

6)         Vendor Response and Request for Hearing

 

A)        Any vendor who receives a notice of proposed debarment may, within 30 days after receipt of the notice, request a hearing.  A vendor that does not request a hearing within 30 days after receipt shall be deemed to have waived any right to a hearing and will be subject to immediate debarment.

 

B)        The vendor may file a written answer to a notice of proposed debarment not later than 20 days prior to the hearing date, but shall not be required to file an answer.  The answer may include affirmative defenses.

 

C)        Form of Documents

 

i)          Documents filed by the vendor shall clearly show the file hearing number and the title of the proceeding in connection with which they are filed on every page of the document.

 

ii)         Each document filed shall be signed by the vendor or by his or her authorized representative or attorney.

 

7)         Hearing Procedures.  The Hearing Officer has the authority to conduct and preside over the hearing, to take all necessary action to avoid delay, to maintain order, to ensure compliance with all notice requirements, and to ensure the development of a clear and complete record.  The Hearing Officer shall have all powers necessary to conduct a fair and impartial hearing, including, but not limited to, the power to:

 

A)        Regulate the course of hearings, set the time and place for continued hearings, fix times for filing of documents and, in general, conduct the proceedings according to the provisions of this Subpart;

 

B)        Interview parties and direct parties to provide responses, limit the number of times any party may testify, limit repetitious or cumulative testimony, and set reasonable limits on the amount of time each witness may testify;

 

C)        Direct parties to appear and confer for the simplification of issues or presentation of evidence that may be received in written form without prejudice to the parties;

 

D)        Dispose of procedural requests or similar matters;

 

E)        Make a recommendation to the CPO-GS regarding the matters;

 

F)         Extend the date of any hearing, provided that the Hearing Officer may condition the granting of a vendor's request for an extension on the imposition or extension of an interim suspension, should the circumstances warrant that action;

 

G)        Afford parties the opportunity to present witnesses;

 

H)        Recommend the appropriate length of a debarment in cases in which it has been established by admission, conviction, or judgment of a court of competent jurisdiction that the vendor engaged in conduct warranting a debarment, or when the vendor has been established by findings made in accordance with law or rule by another public agency that the vendor has engaged in conduct warranting a debarment; however, the Hearing Officer shall not receive evidence relating to the merits of the prior judicial or administrative decision or findings;

 

I)         Make a report containing findings of fact and conclusions of law.  The Hearing Officer shall transmit the entire record, including those findings and conclusions, to the CPO-GS for review and final decision; and

 

J)         Permit the recording of testimony at the hearing by a certified court reporter or a mechanical recording device (need not be transcribed unless requested by a party, who shall pay for the transcription of the portion requested).

 

8)         Determination

 

A)        Based on the record as a whole, the CPO-GS will determine whether the debarment action will be taken.

 

B)        In assessing the record, consideration will be given to the reasonableness in view of surrounding circumstances, corroboration, or lack thereof, as to important allegations, and inferences that may be drawn from the existence or absence of affirmative facts.  This assessment may include a review of documents, such as contracts, deliverables, invoices, inspection reports, and correspondence.

 

C)        Upon reaching a final decision, the CPO-GS will notify the vendor of the determination and will set forth the period during which the vendor shall be debarred from bidding, submitting an offer on State contracts, or holding a State contract. 

 

D)        Parties will be sent a copy of the final decision by mail, postage prepaid, certified or registered, addressed to the last known address of the person, affiliated person, or affiliated entity involved.  A copy of the final decision will be mailed to each party and to all attorneys of record.

 

9)         Debarment Coverage. A debarment applies to the vendor set forth in the notice of proposed debarment. 

 

A)        If the vendor named in the notice of proposed debarment is an individual, the debarment may also apply to any other vendor:

 

i)          In which the debarred individual is an officer or director, or holds any other substantial leadership position, until such time as the individual is severed from the vendor; or

 

ii)         In which the debarred individual has controlling legal or beneficial financial interest, until the debarred individual's interests are divested.

 

B)        In addition to all covered entities and affiliates, the suspension also applies to any entity or affiliate that is formed or organized by a suspended vendor after the date a suspension action was entered.

 

C)        Any debarred vendor, for the term of the debarment, is ineligible to participate as a vendor, material supplier, or lessor of equipment on, or in connection with, contracts awarded by the State or subcontracts of contracts awarded by the State.

 

E)        Aa debarment will also be deemed a finding of lack of responsibility.

 

F)         Exception.  A debarment action is final, except that the period of time during which a contractor or subcontractor is debarred may be decreased, delayed or rescinded at any time, if the CPO-GS determines it is in the best interest of the State.

 

e)         The CPO-GS shall post the public record of suspensions and debarments that are currently in effect on his or her web page and on the Bulletin.

 

f)         The CPO-GS shall maintain a master list of all suspensions and debarments.  The master list shall retain information concerning suspensions and debarments as public records.  This public information may be considered in determining responsibility.

 

g)         Nothing in this Section shall prohibit the BEP Council from taking its own separate action under Section 8 of the BEP Act.

 

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

SUBPART U: VIOLATION OF STATUTE OR RULE

 

Section 1.5620  Violation of Statute or Rule

 

a)         Determination that Solicitation or Award Violates Statute or Rule

If the CPO-GS or the SPO finds that the solicitation or proposed award is in violation of statute or rule, the CPO-GS or SPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if the correction may be legally accomplished.

 

b)         Determination that Contract Violates the Code or this Part

 

1)         If any contract or amendment to a contract is entered into, or purchase or expenditure of funds is made, at any time in violation of this Part or any other law, the contract or amendment may be declared void by the CPO-GS or may be ratified or affirmed, provided the CPO-GS determines that ratification is in the best interest of the State.  If the contract is ratified and affirmed, it shall be without prejudice to the State's right to any appropriate damages.

 

2)         If, during the term of a contract, the SPO determines that the contractor is delinquent in the payment of debt as set forth in Section 50-11 of the Code, the CPO-GS may declare the contract void if it determines that voiding the contract is in the best interest of the State.

 

3)         If, during the term of a contract, the CPO-GS determines that the contractor or subcontractor no longer qualifies to enter into State contracts, the CPO-GS may declare the contract void if it determines that voiding the contract is in the best interest of the State. However, the related contract shall not be declared void unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor no longer qualifies to enter into State contracts.  [30 ILCS 500/50-60(e)]

 

c)         Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the State agency shall endeavor to return those supplies delivered under the contract that have not been used or distributed.  No further payments shall be made under the contract.

 

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

SUBPART V: HEARING PROCEDURES

 

Section 1.5700  General

 

Any hearing required by the Code or offered in this Subpart shall be conducted in accordance with the procedures within this Subpart V, unless otherwise provided for in another Subpart.

 

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

 

Section 1.5710  Informal Process

 

The hearing is for the purpose of receiving information from interested persons in a reasonable manner.  Formal rules of evidence will not apply, nor will the hearing be conducted in the manner of a trial.  The Hearing Officer may record the hearing to aid in producing minutes or may use the recording as the minutes.

 

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

 

Section 1.5720  Hearing Officers

 

a)         The CPO-GS may appoint one or more Hearing Officers to conduct the hearing. If more than one Hearing Officer is assigned to conduct a hearing, one shall be designated as the Chief Hearing Officer.

 

b)         The Hearing Officer may require that the SPO or authorized representative of a State agency attend a hearing or be part of the Hearing Panel.

 

c)         The Hearing Officer will hear and consider information presented by interested persons and make a recommendation to the CPO-GS regarding the validity of the determination of the subject matter of the hearing.

 

d)        The Hearing Officer shall be responsible for the orderly conduct of the hearing by exercising discretion in:

 

1)         Scheduling, starting and ending the hearing;

 

2)         Setting the order of activities;

 

3)         Setting reasonable time limits for oral statements;

 

4)         Resolving any conflicts that may arise during the hearing.

 

e)         The Hearing Officer may cancel a hearing at any time prior to commencing a hearing, including making an announcement at the scheduled hearing date, time and location, but shall give as much advance notice as possible under the circumstances.  A notice confirming the cancellation and any reschedule information will be published in the Bulletin.

 

f)         The Hearing Officer may change a scheduled hearing date, time or location prior to commencing a hearing by posting a notice outside the hearing room and by posting a notice to the Bulletin.  The hearing should be continued to the next practicable date. In setting the next practicable hearing date, the Hearing Officer may take into consideration the schedule of the parties, the hardship to witnesses or the general public, travel and logistical considerations and any other matters that would affect public participation in the hearing.

 

g)         After commencing a hearing, the Hearing Officer may reconvene a hearing by announcing the new date and time at the hearing and posting the new date and time outside the hearing room.  The hearing shall be continued to the next practicable date in accordance with subsection (f).

 

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

 

Section 1.5730  Notice of Hearing

 

a)         Notice that a hearing will be held as necessary to receive testimony or written comments regarding the subject matter identified in the notice will be published in the Bulletin.  The hearing notice shall be published in the Bulletin as soon as practicable and in accordance with any statutory requirements.

 

b)        The hearing may be held as soon as the first working day following the end of the notice period.  The notice shall contain the following information and may describe more than one matter to be considered at the same hearing:

 

1)         The name of the affected parties (e.g., State agency and vendor);

 

2)         A description of the subject matter;

 

3)         A justification for the action under review;

 

4)         Requirements for testifying or submitting written comments;

 

5)         Hearing contact information;

 

6)         The date, time and location of the hearing;

 

7)         A statement that all written comments and oral testimony shall be considered public record and open to review by the public;

 

8)         A statement of, or reference to, this hearing procedure.

 

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

 

Section 1.5740  Written Comments and Oral Testimony

 

Any person wishing to comment for or against the determination may do so in writing alone, may testify in person and may submit written comments reflecting the oral testimony.

 

a)         Written Comments

 

1)         Submission of Written Comments

Written comments are requested by the hearing registration deadline, shown in the Bulletin notice. All written comments received by the hearing date will be considered.

 

2)         Incorporation of Written Comments

If the Hearing Officer has received any written comment, the name and affiliation of the person submitting the comment shall be stated for the record and the written comments shall be incorporated into the record.  In addition, the Hearing Officer may read excerpts from or summarize the basic points of the written comments for the record.

 

b)         Oral Testimony

 

1)         Advance Registration

Any person who wishes to testify is requested to register with the Hearing Contact.  Advance registration is requested to allow for efficient scheduling and to ensure the hearing room has sufficient capacity for those who wish to testify. Those who register in advance will be heard first on the matter for which they registered. The Hearing Officer has discretion to limit testimony for the efficiency of the hearing.

 

2)         Written Copy of Testimony Requested

Written comments reflecting proposed oral testimony are requested by the hearing registration deadline shown in the Bulletin notice to allow the Hearing Officer time to prepare for the hearing.  A person testifying may submit written comments along with the testimony.  The Hearing Officer may request a written copy of the oral testimony.

 

3)         Witness Slip Required

Each person providing oral testimony must complete a witness slip and provide it to the Hearing Officer as instructed.

 

4)         Duration of Testimony

Each person shall have a reasonable period of time to present his or her position based on the complexity of the issue and the press of other business,

 

c)         Sole Source and Emergency Contract Extensions − Supplemental Provisions

 

1)         The notice, including attachments, as shown in the Bulletin represents the position of the State agency and the initial position of the CPO-GS.  The Hearing Officer shall have the notice placed into the record.  A copy of the notice will be posted in the hearing room.

 

2)         The SPO and a representative of the State agency shall attend the hearing if any person registers in advance to testify in opposition to the sole source or emergency contract extension determination.  Attendance may be by video or audio.  The SPO and agency representative shall respond to questions of the Hearing Officer and shall be available for consultation after adjournment of the hearing.

 

3)         The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative.  The Hearing Officer may allow parties to engage in dialogue and allow follow-up questions and answers as needed to ensure full understanding of the matter.  The Hearing Officer is not required to respond to substantive questions at the hearing nor make commitments regarding the content of his or her recommendation.

 

d)         Suspension and Debarment − Supplemental Provisions

A party who receives notice of suspension or debarment may request a hearing to protest the suspension or debarment action.  The hearing will be conducted in accordance with this Section and the following additional provisions shall apply.

 

1)         The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative.  The Hearing Officer is not required to respond to substantive questions at the hearing or make commitments regarding the content of his or her recommendation.

 

2)         Both the affected State agency and the vendor affected by a suspension of debarment may, at the discretion of the Hearing Officer, bring in witnesses to present testimony regarding the facts or circumstances that led to the determination to suspend or debar.

 

3)         In addition to responding to questions of the Hearing Officer, the witnesses shall respond to questions by the affected vendor if, at the discretion of the Hearing Officer, the questions are allowed.

 

A)        The Hearing Officer may allow questions when the subject matter of the question is relevant and the questioning will not unnecessarily delay the proceedings.

 

B)        The Hearing Officer may deny questions when the subject matter seeks only to unnecessarily embarrass the witness or delay the proceedings.

 

e)          Recommendation

After conclusion of the hearing, the Hearing Officer shall review the State agency's position, any information obtained from public comment (written or oral), the applicable Sections of the Procurement Code, other laws and associated rules and written policies and other information deemed relevant.

 

f)          Decision of the CPO-GS

 

1)         The CPO-GS shall, after considering the Hearing Officer's recommendation, make a decision in writing (which may be electronic) to uphold or overturn, in whole or in part, the State agency's decision.

 

2)         The CPO-GS may request additional information from the Hearing Officer, or any other party, including supplemental comments or testimony from the interested parties, prior to making a decision.

 

3)         The CPO-GS may adopt the recommendation, in whole or in part, or may reject the recommendation, or may write a separate decision.

 

g)         Notice of Decision

 

1)         The decision of the CPO-GS shall be provided to the impacted parties and State agencies.  A copy of the decision shall be posted to the Bulletin.

 

2)         Upon posting notice of a decision upholding the determination, the State agency may take action to have the contract executed.

 

h)         Maintenance of Records

A copy of the public notices, any documents presented, any written comments, the recommendation of the Hearing Officer, and any decision of the CPO-GS shall be maintained in the procurement file.  Any transcript or recording of a public hearing shall be available upon request.

 

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

 

Section 1.6010  Supply Management and Dispositions (Repealed)

 

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

 

Section 1.6500  General (Repealed)

 

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

 

Section 1.6510  No Agency Relationship (Repealed)

 

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

 

Section 1.6520  Obligations of Participating Governmental Units (Repealed)

 

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

 

Section 1.6530  Centralized Contracts − Estimated Quantities (Repealed)

                                               

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

 

Section 1.6535  Centralized Contracts − Definite Quantities (Repealed)

 

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

SUBPART W: MISCELLANEOUS PROVISIONS OF GENERAL APPLICABILITY

 

Section 1.7000  Severability

 

If any provision of this Part or any application of it to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or application and, to this end, the provisions of this Part are declared to be severable.

 

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

 

Section 1.7010  Government Furnished Property

 

If the State provides any property to the vendor in furtherance of the contract, the property shall remain the property of the State, but may be consumed by the vendor if necessary to complete the contract.  Vendor will issue a receipt for the property and will be responsible for its safekeeping and for return of unused property to the State.

 

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

 

Section 1.7015  Inspections

 

a)         Inspection of Plant or Site

The CPO-GS or a designee may enter a vendor's or subcontractor's plant or place of business and, pursuant to contract provisions, if any, to:

 

1)         inspect supplies or services for acceptance by the State agency;

 

2)         audit the books and records of any vendor or subcontractor;

 

3)         investigate an action to debar or suspend a person from consideration for award of contracts pursuant to the Code;

 

4)         determine whether the standards of responsibility have been met or are capable of being met;

 

5)         determine if the contract is being performed in accordance with its terms; and

 

6)         accomplish any other purpose permitted by law.

 

b)         The presence or absence of an inspector shall not relieve the vendor or subcontractor from any requirements of the contract.

 

c)         When an inspection is made in the plant or place of business of a vendor or subcontractor, the vendor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.

 

d)         Inspection or testing of supplies and services performed at the plant or place of business of any vendor or subcontractor shall be performed so as to not unreasonably delay the work of the vendor or subcontractor.

 

e)         On-site inspection of construction shall be performed in accordance with the terms of the contract.

 

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

 

Section 1.7020  Taxes, Licenses, Assessments and Royalties

 

a)         The contractor shall pay all current and applicable city, county, State and federal taxes, licenses or assessments, including federal excise taxes, due on the performance of any contract, including, without limiting the foregoing, those required by the Federal Insurance Contribution Act (26 USC 3101 et seq.), the Federal Unemployment Tax Act (26 USC 3301 et seq.) and the State Unemployment Insurance Act [820 ILCS 405], together with all royalties due for any proprietary items.  The contractor is exclusively liable for the payment of taxes to the respective governments. In the event the taxes, licenses, assessments or royalties, or any part thereof, are in the first instance charged to the State agency, the contractor shall, upon timely demand of the State agency, pay the State agency the amount of the tax, license, assessment or royalty due, plus all penalties that may have accrued.

 

b)         The State agency is exempted by Section 3-5 of the Use Tax Act [35 ILCS 105/3-5] from paying any of the taxes imposed by that Act, and sales to the State agency are exempt by Section 2-5(11) of the Retailers' Occupation Tax Act [35 ILCS 120/2-5(11)] from any of the taxes imposed by that Act.  The Illinois Department of Revenue, under 86 Ill. Adm. Code 130.2075(d), has declared that sale of materials to construction contractors for conversion into real estate for schools or charities are not taxable retail sales.  A State agency making purchases of tangible personal property must provide its exemption numbers to vendors in order to receive an exemption from tax.  Contractors making purchases from vendors of tangible personal property that will be incorporated into real estate owned by a State agency must present vendors with the State agency's exemption number and other required documentation in order to receive an exemption from tax.

 

c)         Federal Excise Tax.  Bidders must not include in their prices any allowance for payment under Federal Excise Tax if the State agency is exempt from those taxes.  If an order or contract is awarded for the purchase of an item that is subject to the Federal Excise Tax, the State agency will furnish the vendor with an exemption certificate upon request.

 

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

 

Section 1.7025  Written Determinations (Repealed)

 

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

 

Section 1.7030  No Waiver of Sovereign Immunity

 

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.

SUBPART X: SELECTION OF A SUCCESSOR ILLINOIS LOTTERY PRIVATE MANAGER IF A PRIVATE MANAGEMENT AGREEMENT HAS BEEN TERMINATED

 

Section 1.8000  Authority

 

This Subpart is promulgated by the Chief Procurement Officer for General Services (CPO-GS) in accordance with the provisions of the Illinois Lottery Law (Lottery Law) [20 ILCS 1605].  This Subpart may be amended in accordance with the Lottery Law and the Illinois Administrative Procedure Act [5 ILCS 100/Art. 5].

 

(Source:  Added at 36 Ill. Reg. 16391, effective November 1, 2012)

 

Section 1.8005  General

 

The Chief Procurement Officer shall adopt administrative rules, including emergency rules, to establish a procurement process to select a successor private manager if a private management agreement has been terminated. [20 ILCS 1605/9.1(o)]

 

(Source:  Added at 36 Ill. Reg. 16391, effective November 1, 2012)

 

Section 1.8010  Selection Process

 

a)         Notwithstanding any other law to the contrary, the Department of the Lottery (Lottery) shall select a private manager through a competitive request for qualifications process consistent with Section 20-35 of the Code. [20 ILCS 1605/9.1(e)]

 

b)         Contents.  The Request for Qualifications (RFQ) shall be in the form specified by the Lottery and shall contain at least the following information:

 

1)         The type of services required;

 

2)         A description of the work involved;

 

3)         An estimate of when and for how long the services will be required;

 

4)         The type of contract to be used;

 

5)         A date by which proposals for the performance of the services shall be submitted;

 

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

 

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

 

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

 

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

 

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

 

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

 

7)         Price or other proposed form of compensation (to be submitted in a separate envelope in the proposal package and not mentioned elsewhere in the proposal package);

 

8)         The factors to be used in the evaluation and selection process and their relative importance; and

 

9)         A plan for post-performance review to be conducted by the Lottery after completion of services and before final payment and to be made part of the procurement file.

 

c)         The RFQ may not require, stipulate, suggest or encourage a monetary or financial contribution, donation, incentive or economic investment as an explicit or implied term or condition for awarding the contract.  The RFQ may not include a requirement that an individual or individuals employed by the Lottery or employed by Lottery advisors receive a consulting contract for professional services.

 

d)         Prior to the publication of the RFQ in the Bulletin, the Lottery shall obtain written approval of the evaluation factors from the CPO-GS or a designee.

 

e)         Evaluation.  Proposals shall be evaluated only on the basis of evaluation factors stated in the RFQ.  Price or other form of compensation will not be evaluated until ranking of all proposals and identification of the most qualified vendor.  The minimum factors are:

 

1)         The offeror's ability to market the Lottery to those residents who are new, infrequent or lapsed players of the Lottery, especially those who are most likely to make regular purchases on the internet;

 

2)         The offeror's ability to address the State's concern with the social effects of gambling on those who can least afford to do so;

 

3)         The offeror's ability to provide the most successful management of the Lottery for the benefit of the people of the State based on current and past business practices or plans of the offeror;

 

4)         The offeror's past performance in servicing, equipping, operating or managing a lottery on behalf of Illinois, another State or foreign government and attracting persons who are not currently regular players of a lottery and maximizing revenue in an ethical and socially responsible manner [20 ILCS 1605/9.1(e)];

 

5)         The plan for performing the required services;

 

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

 

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

 

8)         A record of past performance of similar work.

 

f)         Delivery, Receipt and Handling of Proposals

 

1)         Receipt.  Each proposal and modification received shall be date- and time-stamped, recorded in a log and stored in a secure manner (e.g., locked file cabinet, safe, locked room or other secure location) by the person responsible for receiving the proposals.  If a proposal is opened for identification purposes or opened in error, the file shall state the reason for the error.

 

2)         The Lottery shall maintain the confidentiality of the proposals.  No information within the proposals shall be disclosed to anyone prior to opening.  Lottery personnel may confirm receipt of the proposal to the offeror.

 

3)         If a proposal is opened for identification purposes or in error, the procurement file shall include a signed statement explaining the reason for the mistake or error, including the name of every person involved.  The proposal shall be resealed until the time set for opening.

 

4)         Proposals shall be submitted to and opened by the Lottery.

 

A)        Proposals and modifications shall be opened publicly at the time, date and place designated in the RFQ.

 

B)        Opening shall be witnessed by a State witness or by any other person present, but the person opening proposals shall not serve as witness.  A record shall be prepared that shall include the name of each offeror and a description sufficient to identify the supply or service item offered. The record of proposals shall be open to public inspection after award of the contract.

 

C)        Proposals and modifications shall be opened in a manner designed to avoid disclosing contents to competitors.  Only State personnel and contractual agents authorized by the Lottery may review the proposals prior to award.

 

g)         Evaluation Team.  Evaluation Team members shall be determined by the Lottery, be tailored to the particular solicitation, and include, as appropriate, technical or other personnel with expertise to ensure a comprehensive evaluation of offers.  The Evaluation Team members shall be subject to the approval of the Director or his or her designee and committee members may be removed by the Director or his or her designee for failure to comply with instructions or directions.

 

h)         Discussions

 

1)         Discussions Permissible.  The Evaluation Team may conduct discussions with any offeror to:

 

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

 

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

 

2)         No Disclosure of Information.  Discussions shall not disclose any information derived from proposals submitted by other offerors, and the Evaluation Team shall not disclose any information contained in any proposal with any other offeror or person or entity other than personnel authorized by the Director or his or her designee until after award of the proposed contract. 

 

3)         No discussions with offerors may occur unless the entire Evaluation Team is present.

 

i)          Selection of the Best Qualified Offerors

After conclusion of validation of qualifications, evaluation and discussion, the Lottery initially shall rank the acceptable offerors in the order of their respective qualifications compared to the qualifications outlined in the RFQ and not considering price.

 

j)          Evaluation of Pricing Data or Other Proposed Compensation

Pricing and other forms of proposed compensation submitted for all acceptable proposals timely submitted shall be opened and the offerors shall be ranked only after the initial ranking under subsection (i) has been completed.

 

k)         Hearing

 

1)         After evaluation of all offerors' proposals, the Lottery shall select offerors as finalists.

 

2)         The Lottery shall hold a public hearing on the finalists' proposals.

 

3)         At least 7 days prior to the public hearing, the Lottery must provide public notice that includes:

 

A)        The date, time and place of the hearing;

 

B)        The subject matter of the hearing;

 

C)        A brief description of the private management agreement to be awarded;

 

D)        The identity of the offerors selected as finalists; and

 

E)        The address and telephone number of the Lottery.

 

4)         At the public hearing, the Lottery shall:

 

A)        Provide sufficient time to allow each of the finalists to present its proposal.  Each finalist shall be afforded an identical, maximum amount of time for presentation, including any extensions of time that may be granted during the course of the hearing.

 

B)        Allow comments from the public and offerors that were not selected as finalists.

 

l)          Negotiation of Contract

 

1)         General.  The Lottery shall designate a negotiation committee to attempt to negotiate a contract with the best qualified offeror for the required services at fair and reasonable compensation. The Lottery may, in the interest of efficiency, negotiate with the next highest ranked vendor while negotiating with the best qualified vendor.

 

2)         The Lottery shall conduct compensation negotiations with the vendor determined to be most qualified based upon the evaluation factors contained in the RFQ prior to the publication of any notice of award.

 

3)         Elements of Negotiation.  At a minimum, contract negotiations shall be directed toward:

 

A)        Making certain that the offeror has a clear understanding of the scope of the work, specifically the essential requirements involved in providing the required services, and that the plan for service delivery is feasible;

 

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

 

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

 

4)         Successful Negotiation of Contract with Best Qualified Offeror

 

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

 

B)        Compensation must be determined in writing to be fair and reasonable by the Director of the Lottery (Director).  The negotiation committee shall prepare a compensation analysis and recommendation for consideration by the Director.  The analysis shall be based on specifications contained in the RFQ and include, but not limited to, the nature of the services needed, qualifications of the offerors, consideration of range of prices received in the course of the procurement, other available pricing information and the Lottery's identified budget.

 

5)         Failure to Successfully Negotiate Contract with Best Qualified Offeror

 

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

 

B)        Upon failure to successfully negotiate a contract with the best qualified offeror, the Lottery may enter into negotiations with the next most qualified offeror.

 

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

 

Section 1.8015  Lottery Advisors

 

a)         The Lottery may retain the services of an advisor to assist in the preparation of the terms of the request for qualifications and the selection of the private manager.

 

b)         Any prospective advisor seeking to assist the Lottery must disclose all material business or financial relationships during the past three years with:

 

1)         Any potential offeror; and

 

2)         Any contractor or subcontractor presently providing supplies, services or equipment to the Lottery.

 

c)         For the purpose of this Section, "material business or financial relationship" includes, but is not limited to, those relationships in which the individual (or his or her spouse or immediate family member) benefits by receiving a salary, royalty, intellectual property rights, consulting fee, honoraria, ownership interest (e.g., stocks, stock options or other ownership interest, excluding diversified mutual funds), any benefit associated with licensure, or other benefit.  These benefits are usually, but not necessarily, associated with roles such as employment, management position, independent contractor (including contracted research), lobbying, consulting, speaking or teaching, membership on advisory committees or review panels, board membership, and other activities for which some form of remuneration is received or expected.  There is no set minimal dollar amount for relationships to be considered material.

 

d)         All disclosures made under this Section shall include both domestic and international business or financial relationships.

 

e)         After evaluating the material business or financial relationships of each prospective advisor, the Lottery may select an advisor so long as the Department does not deem any of the business or financial relationships of the advisor likely to impair the advisor's objectivity.

 

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

 

Section 1.8020  Public Hearing (Repealed)

 

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

 

Section 1.8025  Award

 

a)         Prior to the Lottery's selection of the final offeror, the CPO-GS shall certify that the procurement process provided for under this Subpart has been followed.  Notice of this determination shall be published on the Bulletin.

 

b)         The Lottery shall select a final offeror as private manager by publication of notice in the Bulletin.  This notice shall include a detailed explanation and the reasons why the final offeror is superior to other offerors and will provide management services in a manner that best achieves the objectives of the Illinois Lottery Law.  [20 ILCS 1605(h)]

 

c)         Written notice of award shall be public information and made a part of the contract file.  The Lottery shall publish the names of its responsible decision makers, the successful vendor, a contract reference number or other identifier, and the value of the contract.  Publication shall be on the Bulletin.

 

d)         Within 7 days after award of the contract and subject to provisions of the Freedom of Information Act, the Lottery shall make available for public inspection and copying all pre-award, post-award, administration and close-out documents relating to the contract.  [30 ILCS 500/20-155]

 

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

 

Section 1.8030  Action to Contest Selection

 

a)         Any action to contest the selection of the private manager by the Lottery must be brought within 14 calendar days after the publication of the notice provided for in Section 1.8025(b).

 

b)         Any action to contest the final selection will be reviewed by the Protest Review Office in accordance with Section 1.5550.  The CPO-GS shall make the final determination on the merits of any action to contest the final selection of the private manager.

 

c)         Protest Review Officer

The CPO-GS may appoint one or more Protest Review Officers (PRO) to consider the procurement-related protests and make a recommendation to the CPO-GS for resolution of the protest.  The CPO-GS may adopt the recommendation or take other action.

 

d)         Submission of Protest

 

1)         A protesting party must submit a protest in writing to the PRO identified in the solicitation document.  Fax and email qualify as writing, but the PRO does not guarantee receipt using those means.

 

2)         The protest must be physically received by the PRO at the location specified.  A postmark or other carrier mark prior to the due date and time is not sufficient to show physical receipt.

 

A)        In regard to the solicitation notice or solicitation document including specifications, a protest must be received within 14 days after the date the solicitation was posted to the Bulletin and must be received by the PRO at the designated address before the date for opening bids or proposals.

 

B)        In regard to rejection of individual bids or proposals or awards, the protest must be received by close of business no later than 14 days after the protesting party knows or should have known of the facts giving rise to the protest to ensure consideration and, in any event, must be received before execution of the applicable contract. 

 

3)         Any notice posted to the Bulletin establishes the "known or should have known" date for the subject matter of the notice. 

 

4)         Protests must be clearly marked on the delivery container, the fax cover sheet or the email subject line.

 

5)         The written protest shall include as a minimum the following:

 

A)        the name and address of the protesting party;

 

B)        identification of the procurement and, if a contract has been awarded, its number or other identifier;

 

C)        a statement of reasons for the protest specifically identifying any alleged violation of a procurement statute, a procurement rule or the solicitation itself, including the evaluation and award (conclusions with supporting facts and arguments may not be sufficient);

 

D)        supporting exhibits, evidence or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated.  If submitting the protest by fax, supporting documentation over 20 pages in length may not be included without authorization.  If the protest is by fax or email, the protesting party may be required to submit documentation by mail or carrier within 2 business days after the request; and

 

E)        specific relief sought.

 

e)         Requested Information

The protesting party must supply any additional information requested by the PRO within the time periods set in the request.  If the protesting party fails to comply with this request, the PRO shall consider the protest on the basis of available information or may deny the protest.

 

f)         Stay of Procurements During Protest

Unless the CPO-GS determines the needs of the State require an immediate execution of a contract, the following apply:

 

1)         When a protest has been timely filed and before an award has been made, the Lottery shall make no award of the contract until the protest has been resolved. 

 

2)         If timely received but after award, the award shall be stayed without penalty to the State.

 

g)         Resolution

The CPO-GS will resolve the protest by means of a written determination.  The resolution may include affirming the State's initial decision, in whole or in part, or revoking the State's decision in whole or in part.

 

h)         Effect of Judicial Proceedings

If an action concerning the protest has commenced in a court or administrative body, the CPO-GS may defer resolution of the protest pending the judicial or administrative determination.

 

(Source:  Added at 36 Ill. Reg. 16391, effective November 1, 2012)