Section 8.1  Short Title

 

This Part may be cited by its official name or as CPO-CDB Procurement Rules.

 

Section 8.5  Policy and Scope

 

Section 1-5 of the Illinois Procurement Code establishes the policy of the State to be that the principles of competitive bidding and economical procurement practices shall apply to all purchases and contracts by or for State agencies.  The purpose of this Part is to establish the rules necessary and desirable to carry out that policy with respect to procurements of construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board and, therefore, subject to the jurisdiction of the Chief Procurement Officer for the Capital Development Board.

 

a)         Sections 1-15.15, 10-5 and 10-20 of the Code establish the Chief Procurement Officer for the Capital Development Board as the person upon whom is imposed the duty to exercise all procurement authority created by the Code with respect to construction and construction-related services subject to the jurisdiction or responsibility of the Capital Development Board.  Subject to exceptions established by the Code, that authority extends to the procurement of construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board.

 

b)         Pursuant to Section 5-25 of the Code, the Chief Procurement Officer is also granted the authority to promulgate rules to carry out the authority to make procurements under the Code.  This Part establishes rules necessary and appropriate to implement the requirements and grants of authority of the Code with respect to the procurements described in subsection (a).

 

c)         Among the purposes and policies of this Part are:

 

1)         The policy that the activities of all State actors in the procurement processes be undertaken to maximize the value of the expenditure of public funds and in a manner that maintains public trust in the integrity of those processes.

 

2)         The intent to ensure that procurement activities are conducted in a manner that is uniform, consistent, fair and open so as to facilitate vendor participation in State procurements and encourage competition to the ultimate benefit of the State.

 

d)         The procurement of office supplies, equipment, commodities and services required for the administrative operation of CDB is not subject to the jurisdiction of the CPO; rather, that procurement shall be conducted under the auspices of the CPO for General Services in accordance with 44 Ill. Adm. Code 1.

 

Section 8.15  Definition of Terms Used in This Part

 

Terms used in this Part shall have the meanings given to them in the Code and this Section unless a term's use in a particular context clearly requires a different meaning.  A term may be defined in a particular Section for use in that Section.

 

"A/E" – An architectural or engineering firm that is in the business of offering the practice of furnishing architectural, engineering or land surveying services for building projects, that is registered with the Department of Financial and Professional Regulation (DFPR) and licensed to practice architecture, structural engineering or professional engineering in the State of Illinois, or that is properly authorized under the Professional Service Corporation Act and by DFPR to practice architecture, structural engineering or professional engineering in the State of Illinois.  For purposes of this Part, this includes licensed individuals transacting business as sole proprietorships, which are not required to be registered with DFPR. Solicitation for procurement of services of architects/engineers (A/Es), or related professionals, shall be in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] and CDB's rules at 44 Ill. Adm. Code 1000.

 

"Amendment" − A change in the terms or conditions of a contract, including, but not limited to, alterations to the scope of work, price, schedule, terms or conditions covered by the contract or the manner of performance or completion of the contract terms.  An amendment may memorialize an action authorized by specific language in the contract (e.g., exercise of an option or showing price decrease or increase based on CPI), or may memorialize non-material changes (e.g., change in the names of notice contacts or number of periodic status meetings).  An amendment to a written contract must be in writing to be effective.  An amendment to a construction contract is known as a "change order" and an amendment to a design or construction-related professional service contract is known as a "modification".  A change order or a modification is an amendment, but an amendment is not always a change order or a modification.

 

"Award" − The identification of a vendor with whom CDB intends to enter into a contract as evidenced by posting a Notice to Award or a Notice of Intent to Award to the Illinois Procurement Bulletin after all CDB-required and SPO approvals have been obtained.

 

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

 

"Bid Documents" − Documents that include, but are not limited to, the Standard Documents for Construction, advertisement for bids, bid forms including PC-2, MBE/FBE Business Enterprise Participation Form, drawings, and product and performance specifications following a format standard in the construction industry.

 

"Bidder" – Any person who submits a bid.

 

"Bid Officer" − A person designated to receive and open bids or offers.

 

"Board" – The seven member Capital Development Board appointed by the Governor.

 

"Brand Name Specification" – A specification limited to one or more items specified by manufacturers' names or catalogue numbers.  A bidder may request product substitutions as specified in the Project Manual or SDC.

 

"Bulletin" or "Procurement Bulletin" − The volume of the Illinois Procurement Bulletin published by the CPO-CDB.

 

"CDB Act" –The Capital Development Board Act [20 ILCS 3105], CDB's enabling Act.

 

"Capital Development Board" or "CDB" – The State agency established by the CDB Act.

 

"Change Order" – A change in a contract term other than as specifically provided for in the contract that is determined necessary to address needs that are best performed by the contract holder, and that authorizes or necessitates any increase or decrease in the cost of the contract or the time of completion. [720 ILCS 5/33E-2(c)]  Change orders that increase or decrease the cost by a total of $10,000 or more or the time of completion by a total of 30 days or more must be accompanied by a written determination that includes a statement that the circumstances said to necessitate the change in performance were not reasonably foreseeable at the time the contract was signed, the change is germane to the original contract as signed, or the change order is in the best interest of the State. [720 ILCS 5/33E-9]  Renewals, change of a vendor's name, and modifications to design or construction-related professional service contracts are not change orders.

 

"Chief Procurement Officer" or "CPO" or "CPO-CDB" – The chief procurement officer appointed by the Executive Ethics Commission for procurements for construction and construction-related services committed by law to the jurisdiction or responsibility of the Capital Development Board pursuant to Section 10-20(a)(2) of the Code.

 

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

 

"Construction Management Services" – Includes, but is not limited to:

 

services provided in the planning and pre-construction phases of a construction project, including, but not limited to, consulting with, advising, assisting, and making recommendations to the Capital Development Board and architect, engineer, or licensed land surveyor on all aspects of planning for project construction; reviewing all plans and specifications as they are being developed and making recommendations with respect to construction feasibility, availability of material and labor, time requirements for procurement and construction, and projected costs; making, reviewing, and refining budget estimates based on the Board's program and other available information; making recommendations to the Board and the architect or engineer regarding the division of work in the plans and specifications to facilitate the bidding and awarding of contracts; soliciting the interest of capable contractors and taking bids on the project; analyzing the bids received; and preparing and maintaining a progress schedule during the design phase of the project and preparation of a proposed construction schedule; and

 

services provided in the construction phase of the project, including, but not limited to, maintaining competent supervisory staff to coordinate and provide general direction of the work and progress of the contractors on the project; directing the work as it is being performed for general conformance with working drawings and specifications; establishing procedures for coordinating among the Board, architect or engineer, contractors, and construction manager with respect to all aspects of the project and implementing those procedures; maintaining job site records and making appropriate progress reports; implementing labor policy in conformance with the requirements of the public owner; reviewing the safety and equal opportunity programs of each contractor for conformance with the public owner's policy and making recommendations; reviewing and processing all applications for payment by involved contractors and material suppliers in accordance with the terms of the contract; making recommendations and processing requests for changes in the work and maintaining records of change orders; scheduling and conducting job meetings to ensure orderly progress of the work; developing and monitoring a project progress schedule, coordinating and expediting the work of all contractors and providing periodic status reports to the owner and the architect or engineer; and establishing and maintaining a cost control system and conducting meetings to review costs. [30 ILCS 500/33-5]

 

"Construction Manager" or "CM" – Any individual, sole proprietorship, firm, partnership, corporation, or other legal entity providing construction management services for the Board and prequalified by the State in accordance with Section 33-10 of the Code. [30 ILCS 500/33-5]

 

"Construction-related Professional Services" – Services performed that are governed by the Architectural, Engineering, and Land Surveying Qualifications-Based Selection Act.  “Professional services” means those services within the scope of the practice of architecture, professional engineering, structural engineering, or registered land surveying, as defined by the laws of this State.

 

"Contract" – All types of State agreements, including change orders and renewals, regardless of what they may be called, for the procurement, use, or disposal of supplies, services, professional or artistic services, or construction or for leases of real property, whether the State is lessor or lessee, or capital improvements, and including master contracts, contracts for financing through use of installment or lease-purchase arrangements, renegotiated contracts, amendments to contracts, and change orders. [30 ILCS 500/1-15.30]

 

"Contractor" or "Vendor" – An individual, firm, partnership, corporation, joint venture or other legal entity who seeks, or has entered into, a construction or construction-related professional services contract with CDB.  The terms contractor and vendor are used interchangeably for purposes of the Code and this Part.

 

"Construction" – means building, altering, repairing, improving, or demolishing any public structure or building, or making improvements of any kind to public real property.

 

"Day" – A calendar day.  In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday or a State holiday, as applicable, in which event the period shall run to the end of the next business day.

 

"DB Act" – The Design-Build Procurement Act [30 ILCS 537].

 

"Design and Construction Manual" or "DCM" – A contractual document that details the role of the A/E on a CDB construction project and contains standard forms and procedures.

 

"Design-Bid-Build" – The traditional delivery system used on public projects in this State that incorporates the Architectural, Engineering, and Land Surveying Qualification Based Selection Act and the principles of competitive selection in the Code.

 

"Design-Build" or "DB" – A delivery system that provides responsibility within a single contract for the furnishing of architecture, engineering, land surveying and related services as required, and the labor, materials, equipment, and other construction services for the project. [30 ILCS 537/10]

 

"Design-Build Contract" – A contract for a public project under the DB Act between the State construction agency and a design-build entity to furnish architecture, engineering, land surveying, and related services as required, and to furnish the labor, materials, equipment, and other construction services for the project. The design-build contract may be conditioned upon subsequent refinements in scope and price and may allow the State construction agency to make modifications in the project scope without invalidating the design-build contract. [30 ILCS 537/10]

 

"Design-Build Entity" – Any individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation, or other entity that proposes to design and construct any public project under the DB Act. A design-build entity and associated design-build professionals shall conduct themselves in accordance with the laws of this State and the related provisions of the Illinois Administrative Code, as referenced by the licensed design professionals Acts of this State. [30 ILCS 537/10]

 

"Design Professional" – An individual, sole proprietorship, firm, partnership, joint venture, corporation, professional corporation or other entity that offers services under the Illinois Architecture Practice Act of 1989, the Professional Engineering Practice Act of 1989, the Structural Engineering Licensing Act of 1989, or the Illinois Professional Land Surveyor Act of 1989.

           

"Designee" − A CDB employee or category of employees designated to exercise procurement authority on behalf of the CPO.  A designee acts under procurement authority of the CPO or SPO and has the responsibility for taking procurement actions in accordance with applicable laws, rules and CDB's Standard Documents for Construction and Design and Construction Manual, as limited by the terms of the designation.

 

"Domestic Product" – A product that meets the requirements of the Procurement of Domestic Products Act.

 

"Drawings" – A technical drawing or set of drawings showing some or all requirements and elements of a construction project.  Drawings fall within the definition of architecture or engineering, and follow a set of conventions that include particular views (floor plans, section, details, etc.), sheet sizes, units of measurement, assembly of components, annotations and cross references.  Drawings are complemented by a project manual containing detailed construction specifications that are based on industry standards and which include general requirements, product and sourcing information, and instructions on performing the work.  Individually or collectively these documents constitute "technical submissions".

 

"Evaluation Criteria" – The requirements for the separate phases of the selection process as defined in the QBS Act, the Design Build Procurement Act, or Article 33 of the Illinois Procurement Code for the selection of construction managers, and which may include the specialized experience, technical qualifications and competence, capacity to perform, past performance, experience with similar projects, assignment of personnel to the project, and other appropriate factors.

 

"Germane" – For purposes of the limitations on the expenditure of funds in excess of a contract price under Section 30-35 of the Code, additional work to be performed or materials to be furnished is "germane" to the original contract only if, in the services or materials are closely or significantly related to, arise out of, or are directly incident to the original contract.  An initial determination of germaneness shall be made by CDB in writing subject to approval of the CPO or SPO. Additional work that is such a substantial departure from the nature, scope or scale of the original contract that it amounts to a new contract or could not fairly been said to have been bid shall not be considered germane.

 

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

 

"Modification" – A modification in a contract term other than as specifically provided for in the contract that is determined necessary to address needs that are best performed by the contract holder, and that authorizes or necessitates any increase or decrease in the cost of the contract or the time of completion. [720 ILCS 5/33E-2(c)]  Modifications that increase or decrease the cost by a total of $10,000 or more or the time of completion by a total of 30 days or more must be accompanied by a written determination that includes a statement that the circumstances said to necessitate the change in performance were not reasonably foreseeable at the time the contract was signed, the change is germane to the original contract as signed, or the change order is in the best interest of the State. [720 ILCS 5/33E-9]  Renewals, change of a vendor's name, and change orders to construction contracts are not modifications.

 

"Offer" or "Proposal" − The response to a Request for Proposal in the form of a letter of interest or statement of qualifications.

 

"Offeror" – A person who responds to a Request for Proposal.

 

"Person" − Any business, public or private corporation, partnership, individual, union, committee, club, unincorporated association or other organization or group of individuals, or other legal entity. [30 ILCS 500/1-15.55]

 

"Proceed Order" – A written directive or agreement amending a contract to allow germane and necessary work to proceed in a manner otherwise not provided for in the contract and subject to a fixed maximum price prior to the finalizing of a change order.  The change order establishes the actual price, which may not exceed the maximum established by the proceed order.

 

"Procurement Compliance Monitor" or "PCM" − Person appointed by the Executive Ethics Commission (EEC) under Section 10-15 of the Code to oversee and review procurement processes, including services procured in accordance with the QBS Act [30 ILCS 535] and the DB Act [30 ILCS 537].

 

"Procurement Officer" – The CPO, SPO or CPO designee who is responsible for a particular procurement.

 

"Procurement Policy Board" or "PPB" − The body created by Section 5-5 of the Code.

 

"Project Manual" – Contractual documents that provide directions to the contractor that follow a format standard to the construction industry.

 

"Purchasing Agency" − A State agency that enters into a contract at the direction of the CPO or an SPO authorized by the CPO. [30 ILCS 500/1‑15.70]

 

"Qualifications Based Selection" or "QBS" –The selection of construction-related professional services in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

 

"QBS Act" – The Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

 

"Renewal" – Except for Real Property and Capital Improvement Leases, an agreement between the parties to a contract to authorize an additional contract period under the terms and conditions of the renewal provision in the contract.

 

"Request for Information" or "RFI" − The process of requesting information from potential vendors or other interested persons for the purpose of educating the State as to the range of available technical solutions and procurement options.  This type of RFI is not a procurement method and does not result directly in the award of a contract.

 

"Request for Proposals" or "RFP" – A notice of projects and services to be procured that is published for purposes of the solicitation of letters of interest or statements of qualifications from construction managers under Article 33 of the Code or from architects, engineers or land surveyors under QBS or of proposals from design-build entities or commissioning agents.

 

"Respondent" – A person who responds to an RFI.

 

"Responsible Bidder" or "Offeror" – Includes a person who has the capability in all respects to perform fully the contract requirements and who has the integrity and reliability that will assure good faith performance.  A responsible bidder or offeror shall not include a business or other entity that does not exist as a legal entity at the time a bid or proposal is submitted for a State contract. [30 ILCS 500/1-15.80]  Additional responsibility requirements related to construction contractors are enumerated in Section 30-22 of the Code.

 

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

 

"Responsive Offeror" – a person who has submitted an offer that conforms in all material respects to the request for proposals.

 

"Scope and Performance Criteria" – The requirements for the public project, including, but not limited to, the intended usage, capacity, size, scope, quality and performance standards, life-cycle costs, and other programmatic criteria that are expressed in performance-oriented and quantifiable specifications and drawings that can be reasonably inferred and are suited to allow a DB entity to develop a proposal.

 

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

 

"Single Prime" – A contracting method whereby one contractor provides all subdivisions of the work necessary to complete the construction project.  These subdivisions include, but are not limited to, plumbing, heating, ventilating, electrical, fire protection, temperature control, and general work.

 

"Solicitation" – The document (e.g., IFB or RFP) posted to the Bulletin requesting interested contractors or vendors to submit a bid, offer or proposal for evaluation by the State.  An RFI is not considered a solicitation.

 

"Specifications" – Any description, provision or requirement pertaining to the physical or functional characteristics, or of the nature of, a supply, service, or other item to be procured under a contract.  Specifications may include a description of any requirement for inspecting, testing, or preparing a supply, service, professional or artistic service, construction, or other item for delivery. [30 ILCS 500/1-15.95]  Specifications include the Standard Documents for Construction, Design and Construction Projects, and Standard Documents for Design-Build Projects Manual for general application and repetitive use, as well as specifications applicable to a specific project which are contained in the Project Manual and drawings.

 

"Standard Documents for Construction" or "SDC" – The document incorporated and made a part of CDB construction contracts that contains the requirements and obligations of contractors and design professionals and that applies to all CDB projects.

 

"Standard Documents for Design-Build Projects" − A contractual document that details the role of the A/E on a CDB design-build project and contains standard forms and procedures.

 

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

 

"Statement of Qualifications" − The information supplied by a vendor in response to an RFP that describes the specific experience and expertise that may qualify the vendor to provide the services requested.

 

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

 

"State Witness" – An employee of the State who, as part of his or her official duties, is assigned to observe the opening of bids or sealed proposals.

 

"Subcontract" – A contract between a person and a person who has a contract subject to the Code, pursuant to which the subcontractor provides to the contractor, or, if the contract price exceeds $50,000, another subcontractor, some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary contract, including, among other things, subleases from a lessee of a State contract.  [30 ILCS 500/1-15.107]

 

"Subcontractor" – A person or entity that enters into a contractual agreement with a total value of $50,000 or more with a person or entity who has a contract subject to the Code pursuant to which the person or entity provides some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary State contract, including subleases from a lessee of a State contract. [30 ILCS 500/1-15.108]

 

"User Agency" − The agency or unit of government for which CDB carries out a construction project.

 

Section 8.20  Referenced Materials

 

The following State statutes are referenced in this Part:

 

a)         Illinois Procurement Code [30 ILCS 500];

 

b)         The Design-Build Procurement Act [30 ILCS 537];

 

c)         Architectural, Engineering, and Land Surveying Qualification Based Selection Act [30 ILCS 535];

 

d)         Capital Development Board Act [20 ILCS 3105];

 

e)         Professional Service Corporation Act [805 ILCS 10];

 

f)         Illinois Architecture Practice Act of 1989 [225 ILCS 305];

 

g)         Professional Engineering Practice Act of 1989 [225 ILCS 325];

 

h)         Structural Engineering Licensing Act of 1989 [225 ILCS 340];

 

i)          Illinois Professional Land Surveyor Act of 1989 [225 ILCS 330];

 

j)          Procurement of Domestic Products Act [30 ILCS 537];

 

k)         Business Enterprise for Minorities, Females, and Persons with Disabilities (BEMFD) Act [30 ILCS 575];

 

l)          Freedom of Information Act (FOIA) [5 ILCS 140];

 

m)        Prevailing Wage Act [820 ILCS 130];

 

n)         Illinois Human Rights Act [775 ILCS 5];

 

o)         Local Government Professional Services Selection Act (LGPSS Act) [50 ILCS 510];

 

p)         Illinois False Claims Act [740 ILCS 175];

 

q)         Criminal Code of 2012 [720 ILCS 5];

 

r)          Illinois Use Tax Act [35 ILCS 105];

 

s)         Illinois Environmental Protection Act [415 ILCS 5];

 

t)          Public Officer Prohibited Activities Act [50 ILCS 105];

 

u)         Lobbyist Registration Act [25 ILCS 170];

 

v)         Illinois Securities Law of 1953 [815 ILCS 5];

 

w)        Governmental Joint Purchasing Act [30 ILCS 525];

 

x)         Steel Products Procurement Act [530 ILCS 565];

 

            y)         Project Labor Agreements Act [30 ILCS 571].

 

Section 8.25  Property Rights

 

No person shall have any right to a specific contract with the State unless that person has a contract that has been signed by an officer or employee of the purchasing agency with appropriate signature authority.  The State shall be under no obligation to issue an award or execute a contract.  [30 ILCS 500/1-25]  No person who participates in a procurement action has any right to an award or subsequent contract.  No notice of award can be issued and no contract can be executed without the written determination of a Procurement Officer.  Neither receipt of a solicitation or other procurement documents nor submission of any response to a solicitation or other procurement request, solicited or otherwise, confers any right to receive an award or contract or contractually obligates the State in any manner.

SUBPART B: PROCUREMENT RULES, POLICIES AND PROCEDURES

 

Section 8.530  Policies and Procedures

 

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

 

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

SUBPART C: PROCUREMENT AUTHORITY

 

Section 8.1005  Procurement Authority

 

a)         The Chief Procurement Officers appointed by the Executive Ethics Commission will exercise the procurement authority created by the Code for the benefit of the State of Illinois and the State agencies under the jurisdiction of each CPO.

 

b)         The authority extends to all aspects of the procurement process, including, but not limited to, pre-solicitation activities, solicitation preparation, source selection, evaluation, award, contracts, contract amendments and records.

 

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

 

d)         The CPO exercises procurement authority directly or through one or more SPOs or temporary acting SPOs, designees, and CDB staff assigned to the procurement function.  Those assigned to assist shall recognize the role and authority of the CPO.  The CPO may reserve certain procurement activities to the CPO and reserves the right to review and modify or overturn any action of an SPO or any other designee.

 

e)         An SPO will exercise procurement authority in accordance with direction and limitations established by the CPO.  The SPO will act primarily to review, authorize and approve State agency procurement.  The CPO and SPO will determine and identify, in writing, procurement activities that must be conducted by the CPO or SPO.  Other procurement activities not so identified will be conducted by the CDB staff with CPO/SPO oversight.

 

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

 

g)         CDB is responsible for assisting User Agencies in determining need for a procurement and, upon direction or request, to provide a rationale to the CPO or SPO for the proposed transaction or activity before the procurement may commence.  Additional justification may be required by the CPO or SPO at later stages of the procurement process.  The CPO or SPO may require that the justification include a statement that the proposed activity or transaction meets legal requirements and State agency policies and is in the best interest of the State of Illinois and the State agency.  If, at the culmination of any of the procurement processes covered by this Part, CDB determines to proceed with the execution of a contract, CDB shall have authority to fully execute and file the contract for payment if, and only if, a Procurement Officer has given prior, written approval of the contract.  The Procurement Officer's approval may be indicated by signature on the contract itself or by signature on a separate form affixed to the contract.

 

h)          CDB staff are responsible:

 

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

 

2)         For obtaining all State and State agency approvals applicable to the particular stage of the procurement process.

 

i)          The  CPO has the authority to approve or reject contracts for a State agency.  In addition to this authority the CPO may direct an SPO to approve or reject contracts for CDB, authorize an SPO to further authorize CDB to enter into contracts, or authorize CDB to enter into contracts.  The head of CDB has the authority to sign and enter into a contract once a SPO provides written approval of the contract. The CPO shall determine in writing which contracts, if any, must be signed by the CPO.  The CPO shall determine in writing which contracts may be signed by an SPO or CDB.  These signature authorities may be modified or revoked at any time by the CPO or SPO, when appropriate.

 

1)                  Any written determination regarding signature authorization shall be maintained by the CPO and distributed to the SPO, CDB head, agency purchasing director and the State Comptroller.

 

2)                  If the CPO or SPO signs a contract, the State agency must also sign in order for the contract to be legally binding on the agency.

 

3)                  If the CPO and SPO do sign or approve a contract, in no event shall the CPO or SPO assume any responsibility or obligation under the contract, financial or otherwise, to any party or person.

 

j)          Procurement Compliance Monitors (PCMs)

 

1)         PCMs have roles and responsibilities established in Section 10-15 of the Code.  This includes monitoring procurement activities of CDB, having access to records and systems, and attending any procurement meeting, including procurement activities conducted in accordance with the QBS Act and the DB Act.

 

2)         CDB shall recognize these statutory roles and shall cooperate with PCMs in the conduct of their actions.  Cooperation includes the giving of prior notice of, and access to, procurement meetings, when reasonable, and access to all procurement related records in whatever format they may exist, including documents, databases and systems.  Failure to cooperate and resolve issues may be reported to the CDB Executive Director and, in certain cases, may require reporting to the Office of the Executive Inspector General for the agencies of the Illinois Governor.

 

3)         Failure to cooperate with the PCM may also be reported to the chairman of the Board and Executive Director of CDB and in certain cases may require reporting to the Office of the Executive Inspector General or other authority.

 

4)         Should a PCM request review of a contract before final execution, CDB shall not execute the contract until approved by the SPO after consultation with the PCM and CDB.

 

Section 8.1040  Central Procurement Authority of the CPO

 

a)         Procurement Requests

CDB must initiate the procurement process through submission of a procurement request to the CPO.  The CPO shall designate the format and requirements for submission. Should a PCM request review of a contract before final execution, CDB shall not execute the contract until approved by the SPO after consultation with the PCM and CDB.

 

b)         Chief Procurement Officer's Authority to Reject

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

 

c)         Determination of Contractual Terms and Conditions

The CPO or SPO has authority to approve the terms and conditions of solicitations and contracts.  The CPO will consult with CDB if CDB requests special terms and conditions. 

 

Section 8.1050  Delegation

 

a)         The CPO may delegate to any SPO or, in consultation with the CDB Executive Director, to CDB authority, to conduct certain named activities or functions.

 

b)         Delegations of authority to designees shall be in writing and shall specify:

 

1)         the activity or function authorized;

 

2)         that the activity or function shall be in accordance with this Part, the Illinois Procurement Code, QBS Act, DB Act and all related statutes;

 

3)         any limits or restrictions on the exercise of the delegated authority;

 

4)         whether the authority may be further delegated;

 

5)         the CPO with authority for the function or activity;

 

6)         the duration of the delegation; and

 

7)         any reporting requirements.

 

c)         Notwithstanding the provisions of subsection (b), any activities delegated under this Section are subject to review by the CPO, PCM or SPO and modification or cancellation by the CPO.

SUBPART D: PUBLICIZING PROCUREMENT ACTIONS

 

Section 8.1501  Illinois Procurement Bulletin

 

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

 

b)         The CPO shall have all rights to, and is the authority for, publishing the Bulletin.  The CPO, shall, in consultation with CDB, determine the content, form, function, organization and structure and may make revisions as necessary.

 

c)         Whenever this Part charges CDB with publishing a notice or other information in the Bulletin, CDB must receive the prior written approval of the Procurement Officer.

 

d)         The Bulletin shall be published in electronic, web accessible form.  In addition, the Bulletin may be made available in print.

 

Section 8.1525  Bulletin Content

 

a)         The Bulletin will contain all content required by the Code.  The Bulletin may include reference information of general interest (e.g., how to access the other volumes of the Bulletin, notice of new legislation, announcements and determinations) and may serve as the CPO's official website.

 

b)         Notice of each procurement shall contain at least the following information:

 

1)         the name of the purchasing and using agency, if different;

 

2)         a brief description of the project with respect to which the services are being procured and of the services sought in the particular solicitation;

 

3)         a project reference number;

 

4)         the date the procurement is first offered (procurements that require notice shall not be distributed to vendors prior to the date the notice is first published in the Bulletin);

 

5)         the date, time and location for submitting bids or proposals;

 

6)         the method of source selection;

 

7)         the name and contact information of the SPO in charge and the name of the CDB Project Manager assigned to the procurement;

 

8)         instructions on how to obtain a comprehensive purchase description and any disclosure and contract forms;

 

9)         encouragement to prospective vendors to hire qualified veterans;

 

10)         encouragement to prospective vendors to hire qualified Illinois minorities, women, persons with disabilities and residents discharged from any Illinois adult correctional center; and 

 

11)        any unique evaluation scoring criteria.

 

c)        The SPO shall send notice of bid opening results electronically directly to each bidder or offeror on the day of bid opening and posted on the CDB website no later than the next day after the bid opening.

 

d)       Notice of the award that was subject of a notice in subsection (b) shall be issued electronically by the SPO on the day of the award to those bidders or offerors submitting responses to the solicitation and no later than the next day after the award on the CDB website. Should the SPO fail to send notice of award to bidders or offerors submitting responses to the solicitation, the time for filing a bid protest will be extended a day for each day the notice of award is late, up to 5 business days.  No later than the end of the next business day, CDB shall publish the notice of award to its website.

 

e)        The SPO shall publish the notice of award in the Bulletin. This notice shall contain at least the following information:

 

1)          the information published under subsections (b)(1) through (7);

 

2)          contract price and the name of the vendor selected for award;

 

3)          the number of unsuccessful responding vendors;

 

4)          for each vendor who submitted a response:

 

A)        the vendor's name;

 

B)        the amount bid; and

 

C)        the percentage of business enterprise utilization plan;

 

5)          the total number of veteran owned small businesses and service disabled veteran owned small businesses that submitted bids and the percentage of veteran utilization plan; and

 

6)          other disclosures required to be published in the Bulletin.

 

f)         In addition to the notice requirements of subsection (e), for solicitations, CDB shall post notice of the apparent low bidder's award and all other bids from bidders responding to the solicitation on its website the next business day or may include a link to the Bulletin for the detailed information of the award. 

 

g)         If CDB awards to other than the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation to bid pursuant to Section 20-10(g), an SPO must post in the Bulletin a written explanation with the notice of award.  The written explanation must also be filed with the Legislative Audit Commission and must include:

 

1)         a descriptions of CDB's needs;

 

2)         a determination that the anticipated cost will be fair and reasonable;

 

3)         a listing of all responsible and responsive bidders; and

 

            4)         the name of the bidder selected, the total contract price and the reasons for selecting that bidder.

 

h)         Publication of Award

 

            1)         The SPO shall publish in the Bulletin the following information regarding emergency procurements within 3 business days after award of an emergency contract:

 

A)        name of the procuring agency (and using agency, if different);

 

B)        name of the vendor selected for award;

 

C)        brief description of what services or supplies the vendor is authorized to provide;

 

D)        total price (if only an estimate is known, it shall be published, but a subsequent notice repeating all required information shall be published when the final amount is known);

 

E)        reasons for using the emergency method of source selection;

 

F)         name of the SPO and the name of the CDB personnel on the purchasing staff in charge of the procurement;

 

G)        the name of the user agency official or officials who initiated the emergency contract action in accordance with Section 8.2030(f)(2); and

 

H)        affidavit of emergency procurement, if available, and if not available, to be filed as an amendment to the notice within 10 days after the emergency procurement.

 

2)         For purposes of this subsection (h), an emergency contract is "awarded" when a Procurement Officer authorizes a vendor to commence work in accordance with Section 8.2030 or when a fully executed contract is issued, whichever occurs first.

 

i)          In addition to the requirements of subsection (h), the notice of hearing to extend an emergency contract must be posted electronically in the Bulletin at least 14 days prior to hearing.

 

j)          The following information in regard to sole source procurements shall be published by the CPO in the Bulletin at least 14 days prior to the award of a contract to a sole source vendor or as many days before the holding of any public hearing pursuant to Section 20-25(a) of the Code:

 

1)         name of the purchasing agency (or using agency, if different);

 

2)         name of the intended sole source vendor;

 

3)         a description of what services or supplies CDB intends to procure;

 

4)         contact information for the CPO and the name of the CDB personnel on the purchasing staff in charge of the procurement;

 

5)         the date, time and location of the a scheduled public hearing with an explanation that the hearing will be cancelled if no hearing request is received; and

 

6)         a completed sole source justification form as prescribed by PPB.

 

k)         CDB shall post in the Bulletin a copy of its annual report of utilization of businesses owned by minorities, females and persons with disabilities.  Posting is due within 10 days after CDB submits its report to the Business Enterprise Council pursuant to Section 6(c) of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act [30 ILCS 575].

 

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

 

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

 

Section 8.1535  Vendor Portal

 

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

 

1)         Provide certifications, disclosures, registrations and other documentation needed to do business with the State in advance of a particular procurement;

 

2)         Submit the vendor's registration number, with a confirmation that the portal information is current, as part of the vendor's response to a competitive selection or a contracting process.

 

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

 

Section 8.1560  Alternate and Supplemental Notice

 

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

 

b)         Publication in the Bulletin may be supplemented in order to reach a broader pool of vendors by publication elsewhere at the discretion of the CPO or SPO.  Examples include publication in:

 

1)         print or online newspapers;

 

2)         industry publications or websites; or

 

3)         CDB or user agency website.

 

Section 8.1570  Error in Notice

 

When a required publication contains an error, the error may be corrected by a single notice published in the Bulletin and elsewhere in the same manner as the original notice within 30 days after the time the error is known.  A correction that results in a change of procurement method or a material change in the requirements set forth in a solicitation may require extension of the time to respond to the original solicitation. The duration of the extension shall be set forth in the correction. Extensions may be granted at the discretion of the Procurement Officer, taking into consideration impacts on the State as well as on vendors.

 

Section 8.1580  Direct Solicitation

 

In addition to giving notice in the Bulletin, a Procurement Officer CDB, the A/E or the user agency may directly contact prospective vendors.  Direct solicitation may be oral or in writing, but all vendors shall receive the same information as provided in the Bulletin.  No direct solicitation shall be made prior to the date any required notice first appears in the Bulletin.

 

Section 8.1585  Notice Time

 

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

 

Section 8.1595  Availability of Solicitation Document

 

The content of a solicitation shall not be distributed to vendors or otherwise to the public prior to the date the solicitation is first published in the Bulletin.

SUBPART E: SOURCE SELECTION AND CONTRACT FORMATION

 

Section 8.2005  General Provisions

 

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

 

b)         Late Bids or Proposals, Late Withdrawals and Late Modifications

 

1)         Any bid or proposal (including any modification, withdrawal or other procurement related submission) received after the time and date for receipt, or at other than the specified location, is late.  A submission that is delivered to the wrong location but that is subsequently delivered to the correct location by the date and time specified shall not be considered to be late. Staff at the incorrect delivery location shall not be responsible for ensuring subsequent delivery. Delivery at the specified location and time shall be the sole responsibility of the bidder or offeror.

 

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

 

3)         Records shall be made and kept for each late bid or proposal, late modification, or late withdrawal.  The record shall include time of receipt, method of delivery (e.g., hand-delivered, overnight mail), name of vendor and person making delivery, and a brief description of the circumstances, if known, that caused the delivery to be late.

 

c)         Extension of Solicitation Due Date

The SPO or a designee may, prior to the due date, extend the time for submitting or modifying a bid or proposal for the convenience of the State.  If notice to extend cannot be made in a manner that fosters a competitive procurement, the opening will be cancelled and rescheduled.  All notices under this Section will be provided electronically and posted on the CDB Procurement Bulletin.

 

d)         Bid Firm Time

 

1)         Unless otherwise provided in the solicitation, the vendor's bid must be kept firm for at least 60 days after the opening date.

 

2)         After opening bids, the SPO or a designee may request bidders to extend the offer firm time for an additional 60 days, provided that, with regard to offers, no other change is permitted.  An extension beyond this will require approval from the Procurement Officer.  CDB must submit a detailed written explanation of the need for extension with the request for additional extension.  This Extension does not provide an opportunity for others to submit bids or proposals.

 

e)         Offer Firm Time

 

1)         Unless otherwise provided in the solicitation, the vendor's offer must be kept firm for at least 120 days after the opening date.

 

2)         After opening proposals, the SPO or a designee may request offerors to extend the offer firm time for no more than an additional 60 days, provided that, with regard to offers, no other change is permitted.  An extension beyond this will require approval from the Procurement Officer.  CDB must submit a detailed written explanation of the need for extension with the request for additional extension. This extension does not provide an opportunity for others to submit offers.

 

f)         Electronic Submissions

 

1)         The solicitation may state that electronic submissions will be considered if they and any required attachments are received in the manner and by the time and date set for receipt, as stated in the solicitation.

 

2)         Electronic submissions authorized by specific language in the solicitation will be opened in accordance with electronic security measures in effect at the time of opening.

 

g)         All bids/offers received shall be time-stamped, and if received via hard copy, recorded on a log and stored in a secure, locked file cabinet or safe and under the control of the bid officer.  The bid officer shall maintain the confidentiality of the bid/offer submittals.  No information regarding bids/offers received shall be disclosed to anyone except to confirm receipt to the bidder or offeror.

 

h)         Only One Bid or Proposal Received

If only one bid or proposal is received, and if it meets the thresholds established by the Capital Development Board of Director's Resolutions, the SPO may award to the single bidder or offeror if the SPO finds that the price submitted is fair and reasonable, and that other prospective bidders or offerors had reasonable opportunity to respond, or there is not adequate time for resolicitation.  Otherwise, the SPO may cancel the procurement and CDB will return the bids.

 

i)          Unit Prices

Unit price items may be included in project specifications only if stated in a solicitation.  The interest of the State must be protected from unlimited increased quantities.

 

j)          Alternate Bids

Subject to Procurement Officer approval, CDB shall, with the assistance of the A/E and user agency, determine what parts or features of the work are most essential and, due to the limit of available funding, what discretionary elements may or may not be included in the project.  Essential elements must be included in the base bid.  All discretionary work must be identified in the IFB as alternates.  To the extent discretionary elements are included, CDB shall identify discretionary work items in the order in which CDB will award the work at time of posting the bid.  The alternates may be additive or deductive values.  The lowest bidder shall be determined by the amount of the base bid plus accepted alternates.  If not all the alternate bids are accepted at the award time, an alternate may be added to the project at a later time by change order if funding becomes available.  If, however, acceptance of the alternate prior to award would have resulted in changing the lowest bidder, the alternate can only be added by change order upon approval of the SPO.

 

k)         Assignment, Novation or Change of Name

 

1)         Assignment.  No CDB contract is transferable, or otherwise assignable, without the prior written consent of the CPO or SPO; provided, however, that a vendor may assign money receivable under a contract after due notice to CDB.  The assignee, except in the case of assignment for payment only, must meet all requirements for contracting with CDB.  Any purported assignment without prior written consent shall be null and void.  The decision to consent with respect to QBS, Construction Management, or design-build contracts shall be based upon consideration of, among other things, the continued availability of personnel whose qualifications served as the basis for the original award and the importance of the professional and artistic judgment of those persons, the qualifications of replacement staff, and the extent to which the services have already been performed.

 

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

 

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

 

B)        the transferee meets all requirements for contracting with CDB;

 

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

 

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

 

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

 

l)          Incorporation by Reference

A solicitation may incorporate documents by reference provided that the incorporated materials are readily available to potential bidders and the solicitation specifies where the documents can be obtained.

 

m)        Confidential Data

Vendors must clearly identify, by page and paragraph, any information submitted to the State claimed to be exempt from the disclosure requirement of the Illinois Freedom of Information Act (FOIA), identify the specific Section of FOIA applicable to the claimed exemption, and show how that Section applies to the information claimed to be exempt.  Information submitted without a claim or exemption may be disclosed to the public without notice or permission.  Information submitted with a claimed exemption may still be disclosed to the public if determined by a court, the Public Access Counselor appointed by the Illinois Attorney General, or the agency receiving the FOIA request that the claimed exemption does not meet the requirements for withholding the information under FOIA.  The agency receiving the FOIA request shall attempt to provide the vendor reasonable notice and opportunity to object to the disclosure of any material claimed by the vendor to be exempt from FOIA.

 

n)         Notice of Subcontractor

 

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.  

 

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 CDB, in writing, of the names and addresses of the proposed subcontractors, the expected amount of money each new or replaced subcontractor will receive, and the general type of work to be performed.  Subcontractors shall be required to register with CDB prior to entering into an agreement and provide financial disclosure and standard certifications prior to entering into a contract with the Prime Contractor.

 

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

 

A)        Good cause may include:

 

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

 

ii)         bankruptcy of the subcontractor;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

B)        A request of a contractor for a substitution of a listed subcontractor shall be submitted in writing to the agency and SPO and shall include the reasons for the request.  The contractor shall provide a copy of its request for substitution to the listed subcontractor by registered or certified mail to the last known address of the subcontractor.

 

C)        No contractor shall permit any subcontract to be assigned or transferred or performed by any entity other than the subcontractor listed on the bid or proposal without the consent of the SPO.  Consent of the SPO to a contractor for a substitution shall be made in writing and be included in the procurement file.

 

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

 

o)         Pre-Solicitation Assistance

 

1)         For purposes of this subsection (o):

 

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

 

B)        "agent of the State" is limited to an A/E under contract with CDB or a consultant to the A/E.

 

2)         Prohibited Bidders or Offerors.  Except as provided in subsection (o)(3), Section 50-10.5(e) of the Code prohibits any person or business from bidding or entering into a contract if the person or business assisted an employee of the State of Illinois, who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract, by reviewing, drafting, directing, or preparing any invitation for bids, request for proposal or request for information or provided similar assistance.

 

3)         Non-Prohibited Acts. Subsection (o)(2) does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

 

A)        Provides the assistance as part of a publicly issued opportunity to review drafts of all or part of the IFB, RFP or RFI.

 

B)        Initiates the communication to provide general information about products, services or industry best practices and, if applicable, that communication is documented in accordance with Section 50-39 of the Code.

 

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

 

D)        In the case of a vendor who bids or offers to supply technology, goods or services developed by the vendor, demonstrates the technology, goods or services in such a way as to represent industry trends and innovation and not in a way specifically designed to meet the State's needs.

 

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

 

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

 

G)        For purposes of this subsection (o), "agent of the State" is limited to an architect/engineer under contract with CDB, or a consultant to that A/E.

 

4)         Prohibited Acts 

 

A)        Specifications.  A person or business may not submit specifications to a State agency unless requested to by a State employee.

 

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

 

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

 

ii)         Review (reads the document and provides comments on the procurement document or signifies approval or disapproval);

 

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

 

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

 

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

 

C)        A person who contracts with CDB to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement.

 

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

 

p)         Pre-Bid Conference

 

1)         A pre-bid conference may be conducted to enhance the potential vendors' understanding of the procurement requirements.  The pre-bid conference shall be announced as part of the solicitation notice.  The conference may be designated as "attendance mandatory" or "attendance optional".  CDB may designate a conference as "attendance mandatory" only when direct observation of site conditions or the nature of specifications makes attendance necessary to be able to prepare an accurate bid.

 

2)         The conference should be held long enough after the solicitation has been published to allow potential vendors to become familiar with it, but sufficiently before solicitation opening to allow consideration by vendors of conference results in preparing their responses.

 

3)         Supporting documentation of the conference shall be supplied to all prospective vendors known to have received a solicitation by posting the information on the Bulletin.  Nothing stated at the pre-bid conference shall change the solicitation unless a change is made by written modification to the solicitation.

 

4)         Nothing stated at the pre-bid conference shall change specifications unless a change is made by written modification to the solicitation. Information conveyed in pre-bid conferences is not reportable under Section 50-39 of the Code, but any amendments resulting from the conference shall be supplied to all those prospective vendors through posting on the Bulletin.  The A/E shall also issue a copy of the modified solicitation directly to all vendors who attended the conference and publish it in the location of the original solicitation and specifications.

 

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

 

Section 8.2010  Competitive Sealed Bidding

 

a)                  Application.  Except as provided, unless an exception authorized by the Code and this Part exists, CDB contracts for construction projects shall be procured by competitive sealed bidding in accordance with Section 20-10 of the Code and this Section.  Solicitations for bids shall be in conformance with the Code and this Part, and, in exigent circumstances for a specific procurement, with CPO Notices.  Contracts shall be awarded in accordance with those authorities and with the provisions set forth in the SDC unless otherwise specified in the advertisement for bids published in the Procurement Bulletin, or as authorized by law or policies governing bid matters that are expressed in the SDC relating to the Invitations for Bid process.

 

b)         Invitations for Bids

 

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, the name of the bid officer, and the bid firm date;

 

B)        the project description, instruction as to where the comprehensive purchase description (also known as "bid documents") may be obtained, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the project description;

 

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

 

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

 

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 issued as "addenda" and shall clearly identify and reference the portion of the IFB being amended.

 

2)         Distribution.  Amendments shall be posted to the Bulletin, and the A/E shall distribute them directly to plan rooms and all known plan holders.

 

3)         Timeliness.  Amendments shall be made available so as to allow prospective bidders a reasonable time to consider them in preparing their bids, but receipt will be not later than 3 days before the time of bid opening.  If the time and date set for receipt of bids will not permit that preparation, the amendment shall extend the response time.

 

d)         Licensing.  In addition to other statutory requirements, all bidders shall be responsible for proper licensing with the appropriate State agency in the trades the bidder will perform on the particular project, such as, but not limited to, roofing, plumbing and asbestos abatement.

 

e)                  Obtaining Bid Documents.  At the time of publishing an advertisement for bids, CDB shall make project plans, specifications and other bidding documents available to prospective bidders through the offices of the project Architect/Engineer (A/E) and other locations such as commercial "plan rooms", or electronic means, including the CDB or CPO websites or the Procurement Bulletin.  Each advertisement shall identify the specific locations from which bid documents may be obtained.  The A/E may charge a refundable deposit  for loan of bid documents.

 

f)                   Construction Administration Fee.  If CDB assesses a construction administration fee as authorized by Section 9.02(a) of the CDB Act, the amount or percentage of that fee shall be identified in the bid documents.

 

g)                  Reporting of Bid Document Errors or Inconsistencies.  Bidders shall have an affirmative duty to examine bid documents and site conditions and to report any discovered errors or inconsistencies to the project A/E.  Bidders awarded a contract will not be given change orders for extra payment or time extension for conditions that could reasonably have been discovered.

 

h)                  Agreement to Terms.  By submitting a bid, the bidder agrees to all terms and conditions of the SDC and other contract documents referenced or incorporated in the IFB.  Accordingly, submittal of conditions or qualifying statements on bids may be cause for rejection of the bid.

 

i)                   Bid Security.  All bids shall include bid security in the form of a bid bond on CDB's form, certified check, cashier's check or bank draft in the amount of 10% of the base bid.  If a bid bond is used, the surety issuing the bond must be acceptable to CDB.

 

j)          Pre-Opening Modification or Withdrawal of Bids

 

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

 

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.

 

k)         Receipt, Opening and Recording of Bids

 

1)                  Receipt.  Upon its receipt, each bid and modification shall be date and time-stamped but not opened and shall be stored in a secure manner (e.g., locked file cabinet, safe, locked room or other secure location) until the time and date set for bid opening.  If a bid is opened for identification purposes or in error, the file shall state the reason for the breach. The bid officer and the person mistakenly opening the bid shall sign a statement explaining the reason for the mistake or error, including the name of anyone involved.  The statement shall be included in the procurement file, and the bid shall be resealed. The bid shall be resealed until the time set for bid opening.

 

2)         Opening and Recording.  The bid officer shall open the bids and modifications publicly at the time, date and place designated in the IFB in the presence of a State witness.  The bid officer shall not serve as witness.  The bid officer shall announce and record on the bid tabulation sheet the project, the construction trade, the name of each bidder and that bidder's price, including modifications and alternate prices, and any acknowledgement of addenda.  The Procurement Officer may require the reading of additional information if the nature of the project and bidding warrants.

 

3)         CDB the CPO or SPO may request that a vendor clarify its bid or proposal as part of the evaluation process.  A vendor shall not be allowed to change its bid or proposal or deviate from the specifications in response to a request for clarification.

 

l)          Bid Evaluation and Award

 

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 and only those requirements and criteria, except as permitted in the Code and this Part.  After evaluating bids, CDB shall identify the lowest responsible and responsive bidder and submit to the Procurement Officer a written recommendation to award to that bidder unless an exception applies.

 

2)                  Responsibility and Ineligibility.  Responsibility of prospective vendors is addressed in Section 8.2046 and Subpart V.

 

3)                  Material deficiencies shall result in rejection of a bid and include:

 

A)        Failure of the contractor to be prequalified;

 

B)        Omission of signatures resulting in the intent to be bound by the bid being not apparent;

 

C)        Submission of a bid price that cannot be determined;

 

D)        Failure to provide required bid security;

 

E)        Failure to demonstrate responsibility.

 

4)         Technical Deficiencies.  Technical deficiencies in bids may be remedied by the bidder within 7 days after having been notified of the deficiency by CDB.  The date of notification is deemed to be the business day of the sending of an email or fax, the date of delivery if recorded by the service making the delivery, or, in the case of first class mail, the third day after the date of the postmark.  Technical deficiencies include but are not limited to the following:

 

A)        Failure to use proper bid forms;

 

B)        Submission of a bid bond that is not on CDB's form;

 

C)        Failure to include a properly completed PC-2 (the Minority and Female Workforce Participation form of the Department of Human Rights); or

 

D)        Failure to acknowledge an addendum that makes a material change to the bid documents.

 

5)         Product Substitutions.  Bids for construction projects shall be based on providing all products, subcontractors or suppliers specified.  However, CDB specifications shall provide that a bidder may propose substitutions of a product, subcontractor or supplier upon review and approval by CDB and the project A/E.  The product substitution process may be utilized regardless of whether the specification calls for a sole source and whether only brand names are listed.  Substitutions shall not be accepted after award unless approved by a Procurement Officer.  Determinations on the acceptance of substitutions shall be included in the procurement file.

 

6)         CDB's written recommendation to award shall be in the form of an award package that includes, at least, the bid tabulations, the name and bid amount of the recommended awardee, results of the awardee's evaluation, MBE/FBE participation and identification of any bids rejected and the reasons for rejection.

 

7)         No Disclosure of Information.  Other than information that was recorded, read and made publicly available at the opening of the bids, CDB shall not disclose any information contained in any bid with any other bidder or person or entity, other than the CPO, SPO, PCM or CDB personnel, who requires access to information in furtherance of his or her job duties until after award of the proposed contract has been posted to the Illinois Procurement Bulletin.

 

m)        Award to Other Than Low Responsible and Responsive Bidder

 

1)         The SPO, but not a designee, may authorize the State to award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest.  The determination shall include a description of the user agency's needs, a statement that the anticipated cost will be fair and reasonable, a listing of all responsible and responsive bidders, the name of the bidder selected, the total contract price and an explanation of the reasons for selecting this bidder instead of the low bidder.

 

2)         The SPO must publish the determination in the Bulletin and file a copy with the Legislative Audit Commission and PPB.  This information shall be made available by the CPO for inspection by the public within 30 days after the agency's decision to award the contract.

 

n)         Publicizing Award

 

1)         Bidders shall be notified of contract award.  The notification shall be issued electronically to the successful bidder in the form of a letter or other clear communication.  Notices of awards through the Invitation for Bids process shall be published in the Bulletin prior to the execution of a contract.  Failure to provide this notice to all bidders shall result in extending the time for filing a bid protest up to 5 business days.  The extension shall be a day for each day the notice is late, up to 5 days.  If the contract is awarded to other than the lowest bidder, the notice shall include an explanation of the award.  Notice of the award shall be posted on CDB's website the next business day.  All bids and supporting documents shall be made available by CDB for public inspection and copying after award unless exempt from the disclosure requirement of the Illinois Freedom of Information Act ("FOIA") [5 ILCS 140].

 

2)         Notice of award must include at least the following information:

 

A)        date solicitation first offered;

 

B)        due date for submission of offers;

 

C)        location for submission of offers;

 

D)        name of purchasing agency;

 

E)        name of responsible SPO and CDB personnel on the purchasing staff;

 

F)         brief description of supplies/services being purchased;

 

G)        method of source selection;

 

H)        the contract price and the name of the vendor selected for award;

 

I)         the number of unsuccessful responding vendors;

 

J)         for each vendor who submitted a response:

 

i)          the vendor's name;

 

ii)         the bid amount;

 

iii)        the percentage of business enterprise utilization plan;

 

K)        total number of veteran owned small businesses and service disabled veteran owned small businesses that submitted bids and the percentage of veteran utilization plan;

 

L)        any other disclosure required by the Code.

 

Section 8.2020  Small Purchase Limits

 

a)         Small Purchase Limits

 

1)         As authorized by law and under the jurisdiction of the CPO-CDB, individual contracts for construction, construction-related services, construction-related professional services, and construction management supplies or services not exceeding the following thresholds (hereinafter, "small purchase limit") may be made without notice or competition or use of other method of procurement as follows:

 

A)        Procurements for construction-related professional services with an estimated basic professional services fee of less than $25,000;

 

B)        Procurements for construction management contracts of less than $25,000;

 

C)        Procurements for construction and construction-related services of less than $100,000.

 

2)         The CPO-CDB shall publish any change identified by the United States Department of Labor in the Consumer Price Index for All Urban Consumers for the period ending each December 31, and for each year thereafter on its website.  That percentage change shall be used to recalculate the small purchase maximum for construction that shall be applicable for the fiscal year beginning the following July 1.  The CPO-CDB shall publish on the Procurement Bulletin the current small purchase maximum.

 

b)         Determination of Small Purchase Status

 

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

 

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

 

3)         If there is a repetitive need for small procurements of the same type (which may be evidenced by a pattern of small purchases, as determined by CDB or the SPO), CDB shall consult with the SPO to consider whether issuing a competitive sealed bid or proposal for procurement of those needs is required or otherwise in the best interest of the State.  Procurements shall not be artificially divided in order to constitute a small purchase.

 

c)         The CPO shall establish policies and procedures to manage the use of the small purchase method of source selection.

 

1)         The policies shall include, but not be limited to, an informal request for quote process through which CDB shall:

 

A)        identify the scope of work;

 

B)        provide the same scope of work, cost estimates, and time for response to all contacted businesses;

 

C)        consider registered Illinois small businesses, Business Enterprise (female/minority/disabled), and Veteran-owned firms;

 

D)        attempt to obtain at least 3 quotes from businesses who can provide the work. If 3 businesses cannot be identified, CDB shall document in the procurement file why it was unable to obtain 3 quotes; and

 

E)        attempt to not select the same business, including branch offices, more than once in the same calendar year unless CDB can document in the procurement file why the repeated use of the business is justified.

 

2)         CDB prequalification of contractors is required for small purchases of construction services involving any of the 5 subdivisions of work outlined in Section 30-30(a) of the Code.

 

3)         Documentation of each small purchase shall be maintained in the procurement file and each small purchase will be reviewed and approved by the Chief Procurement Officer.

 

(Source:  Amended at 40 Ill. Reg. 14354, effective October 10, 2016)

 

Section 8.2025  Sole Economically Feasible Source Procurement

 

a)         Application.  The provisions of this Part apply to procurement from a sole economically feasible source (referred to as "sole source") unless the estimated amount of the procurement is within the limit authorized in Section 8.2020 (Small Purchases) or unless emergency conditions exist as defined in Section 8.2030 (Emergency Procurements), in which case those other procedures may be used.

 

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

 

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)         non-competitive public utility services;

 

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

 

5)         contract has expired, but the supplies or services have not been fully provided;

 

6)         Federal or State grant requires contract with named vendor;

 

7)         changes to existing contracts (see subsection (c)).

 

c)         Changes

A change that is germane and reasonable in scope and cost in relation to the original contract that is necessary or desirable to the success of the project need not comply with these sole source procedures.

 

d)         Sole Source Determination and Hearing

 

1)         CDB may request that a particular procurement be made on a sole source basis.  The request shall be in writing on a form prescribed by the Procurement Policy Board and shall describe in detail the basis for the sole source determination.

 

2)         If the SPO approves, the SPO shall cause to be published in the Bulletin and provided to PPB the notice of intent required by Section 20-25(c) of the Code.  In addition to meeting other requirements, the notice shall advise interested parties of the date, time and location of any hearing that may be held in response to a written request submitted by an interested party to challenge the justification for use of the sole source procurement method.

 

3)         The hearing date shall be set for a date no fewer than 15 days after publication of the notice.  Unless an interested party's request for hearing is received by the CPO no later than the close of business on the date prior to the scheduled hearing, the Procurement Officer shall cancel the hearing and cause notice of cancellation to be published in the Bulletin prior to the hearing date.  If a hearing is requested, the procurement may proceed on a sole source basis only after the hearing is conducted and with the approval of the CPO.

 

e)         Hearing Procedures.  Any hearing required shall be conducted in accordance with Subpart T.

 

Section 8.2030  Emergency Procurements

 

a)         Authority to Make Emergency Procurements.  The provisions of this Section apply to every procurement over the small purchase limit set in Section 8.2020 made under emergency conditions.  The CPO shall have the authority to make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods.

 

b)         Statutory Emergency Conditions exist:

 

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

 

2)         when immediate expenditure is needed for repairs to State property in order:

 

A)        to protect against further loss or damage to State property;

 

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

 

C)        to ensure the integrity of State records.

 

c)         Scope of Emergency Conditions.  CDB shall provide the CPO a detailed written description of the basis for the emergency and reasons for the selection of the particular contractor to be included in the contract file in accordance with Section 20-30(a) of the Code.  Emergency procurement shall be limited to the supplies, services, construction or other items necessary to meet the emergency need (i.e., the temporary solution).  Under certain situations, the temporary solution may also be the permanent solution when doing so is shown to be in the best interest of the State.  In this event, the notice shall describe that circumstance.

 

d)         Source Selection Methods

 

1)         CDB will employ as much competition as is practicable under the emergency circumstances to address the emergency situation, as approved by the SPO.

 

2)         When practicable, a minimum of three vendors approved by the SPO shall be evaluated for award of an emergency contract.  Documentation of efforts made to obtain competition shall be made part of the procurement file.

 

e)         Determination and Record of Emergency Procurement

 

1)         Determination.  The SPO shall make a written determination confirming or denying the basis for the emergency and the reasons for the selection of the particular vendor.  These determinations shall be kept in the procurement file.

 

2)         Emergency Contract Award.  For purposes of an emergency contract, an emergency contract is awarded on the earlier of the date an agency communicates to a vendor to start work, date of publication in the Illinois Procurement Bulletin identifying the vendor of the required goods or services, or the date the contract is signed by both parties.

 

3)         Vendor Authorization.  Unless impractical, no work shall be performed by a vendor under the jurisdiction of the CPO without the prior written authorization of the SPO.

 

4)         Record.  A written explanation and affidavit of each emergency procurement (including extensions of emergency contracts beyond 90 days) shall be submitted to the CPO by CDB within 5 days after an emergency contract is awarded (see Section 8.2030(e)(2)).  The CPO will submit the explanation and affidavit to the Auditor General and the PPB within 10 days after award and shall include the following information:

 

A)        the vendor's name;

 

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

 

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

 

D)        the conditions and circumstances requiring use of the emergency method of source selection, including the cost and advantages and disadvantages of reasonable alternatives to the emergency procurement;

 

E)        the expected duration of the contract;

 

F)         the expected or anticipated need for other contracts that might be necessary to completely address the emergency conditions;

 

G)        an analysis of how a competitive selection may or will be structured to address a permanent solution to the condition prompting the emergency; and

 

H)        such other information as may explain the emergency procurement or as may be requested by the SPO.

 

5)         Notice of the Emergency Procurement.  Notice of the emergency procurement shall be published in the Bulletin by the SPO as specified in Sections 15-25(c) and 20-30 of the Code no later than 3 business days after the contract is awarded and shall include a description of the procurement, identification of the contractor, the reasons for the emergency procurement, the names of the responsible CPO and SPO, and the total cost.  When only an estimate of the total cost is known at the time of publication, the estimate shall be identified as an estimate and published.  When the total cost is determined, it shall also be published in like manner before the 10^th day of the next succeeding month.

 

6)         CDB shall be responsible for preparing the filings required in Section 20-30 of the Code.

 

f)         Duration and Replacement of Emergency Contract.  By statute, the term of an emergency purchase shall be limited to the time reasonably needed for a competitive procurement, not to exceed 90 days.  Therefore, unless the purchase or the temporary nature of the emergency conditions are likely to resolve the emergency or otherwise make unnecessary the emergency measures, CDB shall immediately act to initiate whatever competitive procurement is appropriate to provide the services on a longer term basis or, in the case of a temporary solution, is necessary to acquire the permanent solution.

 

g)         Extension of Emergency Contract.  An emergency contract may be extended beyond 90 days if the CPO determines additional time is necessary and the contract scope and duration are limited to the emergency.

 

1)         If CDB believes an extension beyond 90 days is necessary, it shall direct an extension request to the SPO for approval.  The request shall be in writing and include justification for the extension and a description of the efforts of CDB and, if appropriate, the using agency to address the emergency condition on a permanent basis.

 

2)         If the SPO approves, the SPO shall submit the request to the CPO with a written approval and justification for that approval.  Unless the CPO disapproves the request, the CPO shall hold a public hearing on the extension, notice of which shall be published in the Bulletin no later than 14 days prior to the hearing.  Notice shall include at least a description of the need for the emergency extension, the contractor, and, if applicable, the date, time and location of the public hearing.

 

3)         The public and any representative of the PPB may present testimony at the public hearing, which shall be conducted in accordance with Subpart T.  Only after the hearing and the CDB providing written justification, may the CPO allow the emergency contract to be extended.  The notice of hearing and all hearing documents, including the written justification, must be posted on the Bulletin as soon as possible but no later than 3 days after the hearing.

 

Section 8.2036  Other Methods of Source Selection

 

a)         Single-Prime.  In accordance with Section 30-30 of the Code and subject to prior approval of the Procurement Policy Board, CDB may, on certain projects, retain one contractor to provide all subdivisions of the work necessary to complete the construction contract.  Use of this method requires prior written approval of the CPO. The CPO's review and approval shall be limited to compliance with the requirements of Section 30-30(i) through (vii) of the Procurement Code.

 

b)         Design-Build.  In accordance the Design-Build Procurement Act, CDB may use the design-build delivery method for certain projects, provided it first makes a written determination that it is in the best interest of the State to enter into a design-build contract.  This written determination must include a description of particular advantages of the design-build method.

 

c)         Construction-related professional services shall be procured in accordance with the QBS Act, Subpart M of this Part and, to the extent not inconsistent with QBS and Subpart M, the remainder of this Part and any related rules of the Board.

 

d)         Construction management services shall be procured in accordance with Subpart N of this Part, and, to the extent not inconsistent with Subpart N, the remainder of this Part and any related rules of the Board.

 

e)         Federal Requirements.  If a project is funded with federal aid funds, grants or loans or is otherwise subject to federal requirements, the funded procurements shall be conducted in accordance with federal requirements that are necessary to receive or maintain those federal aid funds, grants or loans or to remain in compliance with federal requirements.

 

Section 8.2037  Tie Bids and Proposals

 

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

 

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

 

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 8.4510 (Resident Vendor Preference).

 

2)         In all other situations, the award shall be made by the toss of a coin, properly witnessed and recorded, unless CDB requests and documents, and the SPO determines that awarding to one of the vendors is in the State's best interest because, for example, that vendor:

 

A)        is likely to be more reliable or responsive to the State's needs, based on past performance;

 

B)        provides a better quality of the supply or service as demonstrated by performance evaluations on file prior to bidding, or such similar evidence;

 

C)        provides quicker delivery; or

 

D)        in the case of proposals, because of a desire to take advantage of the lower price.

 

c)         Records.  In addition to the record in the particular procurement file, a separate record shall be made of all procurements on which tie bids or offers are received, showing at least the following information:

 

1)         The identification number of the solicitation;

 

2)         A description of what was procured; and

 

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

 

Section 8.2038  Modification or Withdrawal of Bids or Proposals

 

a)         Modification or Withdrawal  A bidder or offeror may withdraw or modify a bid or proposal if notice of the withdrawal or modification is received by the bid officer before the latest time specified for receipt of bids or proposals.  Any modification or withdrawal, however, must be made in writing and conveyed directly to the bid officer prior to the scheduled bid or proposal opening.  The SPO may allow all modifications or withdrawals by printed form conveyed by electronic mail or fax. Method of submittal of withdrawal and modification must be included in the bid documents including any specific fax numbers or e-mail addresses.

 

1)         Withdrawal of bids or proposals after bid or proposal opening will not ordinarily be permitted.  A thorough analysis of the request for withdrawal of bid or proposal, including a recommendation to approve or deny the request, must be provided to the SPO. In cases in which, in the judgment of the SPO, based on credible, clear and concise evidence, the bidder or offeror has made a bona fide error in the preparation of the bid or proposal and that error will result in a substantial loss to the bidder or offeror, a withdrawal may be made at the SPO's discretion.

 

2)         Minor Informalities or irregularities.  A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on quality, quantity, delivery or contractual conditions is negligible).  The bid officer shall waive these informalities or irregularities allowing correction if to allow such correction is in the best interests of the State.  A record of minor informalities and irregularities shall be maintained in the Procurement File and is subject to review by the SPO during the award process. Examples of minor informalities as to form include the failure to:

 

A)        return the required number of signed copies required by the IFB;

 

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

 

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

 

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

 

b)         Documentation Required.  When a bid or proposal is corrected or withdrawn, or correction or withdrawal is denied, a written determination shall be prepared by the bid officer and provided to the SPO showing that relief was granted or denied in accordance with this Part.

 

Section 8.2039  Mistakes

 

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

 

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

 

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

 

1)         Minor Informalities or Irregularities.  A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery or contractual conditions is negligible).  The bid officer shall waive these informalities or irregularities allowing correction if to allow the correction is in the best interest of the State.  A record of minor informalities and irregularities shall be maintained in the procurement file and is subject to review by the SPO during the award process. Examples of minor informalities as to form include the failure to:

 

A)        return the required number of signed copies required by the IFB or RFP;

 

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

 

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

 

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

 

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 clear and convincing evidence demonstrating a mistake was made.

 

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

 

Section 8.2040  Cancellation of Solicitations; Rejection of Bids or Proposals

 

a)         Policy.  Any solicitation may be canceled before or after opening when the SPO believes cancellation to be in the State's best interest.  An SPO may request from CDB any information necessary to assist the SPO in reaching a determination of whether cancellation is in the State's best interest.  Nothing shall compel the award of a contract.

 

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

 

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

 

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

 

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

 

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

 

D)        ambiguous or otherwise inadequate specifications;

 

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

 

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

 

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

 

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

 

2)         When a solicitation is canceled, 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 not responsible as determined under Section 8.2046 (Responsibility and Eligibility);

 

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.  Bidders or offerors whose bids or proposals have been rejected shall be advised of the reasons for rejection.

           

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

SUBPART F: PREQUALIFICATION AND RESPONSIBILITY

 

Section 8.2045  Vendor Prequalification and Responsibility

 

Prequalification constitutes a preliminary determination of responsibility requisite for a vendor to be eligible to bid or submit proposals.  Prequalification is not a binding final determination of a vendor's responsibility.  All entities required to be prequalified shall be prequalified in accordance with Subparts V, W and X.  Responsibility shall be considered by the SPO prior to making an award or signing a contract in accordance with Section 8.2046.

 

Section 8.2046  Responsibility and Ineligibility

 

a)         Application.  Before making an award or signing a contract, the SPO must be satisfied the prospective vendor is responsible.  CDB's recommendation to award a contract shall include a determination of responsibility.  If there is doubt about responsibility, a vendor may be denied an award.  If additional bonding or other security would adequately protect the State's interests, then that vendor may receive an award or contract upon receipt of the bond or other security.

 

b)         Standards of Responsibility.  Factors to be considered in determining whether the standard of responsibility has been met include, but are not limited to, whether a prospective vendor:

 

1)         has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or the ability to obtain and manage this expertise, necessary to indicate its capability to meet all contractual requirements. CDB shall not recommend a determination of responsibility for any vendor who has the appearance of being a broker, rather than a conventional business.  In determining whether a vendor is a broker or a vendor with inadequate resources, CDB may consider one or more of the following:

 

A)        whether the vendor maintains and works from a separate conventional office which is not a residence or offices for other businesses;

 

B)        whether the vendor maintains a full-time office with professional and/or construction staff consisting of clerical, managerial, and supervisory personnel;

 

C)        whether key persons with the vendor have an educational and work experience background that makes the key persons sufficiently expert and knowledgeable to carry out CDB construction projects;

 

D)        whether the vendor owns equipment, tools, machinery, materials or supplies used on construction projects;

 

E)        whether the contractor has financial resources related to or generated by the construction business;

 

F)         whether the vendor has historically subcontracted for a percentage of the work in construction contracts exceeding the requirements of CDB contracts;

 

G)        whether key persons with the vendor are engaged in non-construction businesses;

 

2)         is able to comply with required or proposed delivery or performance schedules, taking into consideration all existing commercial and governmental commitments;

 

3)         has a satisfactory record of performance.  Vendors who are or have been materially-deficient in current or recent contract performance in dealing with the State or other customers may be deemed "not responsible" unless the deficiency is shown to have been beyond the reasonable control of the vendor;

 

4)         has a satisfactory record of integrity and business ethics.  Vendors who are under investigation or indictment for criminal or civil actions that bear on the particular procurement or that would make contracting with that vendor undesirable may be declared not responsible for the particular procurement;

 

5)         is qualified legally and authorized to contract with the State, which means, among other things, the vendor holds and is in good standing with respect to all licenses, certifications, financial disclosures and conflicts of interest or registrations necessary to provide the subject services in Illinois;

 

6)         has supplied all necessary information in connection with any inquiry concerning responsibility;

 

7)         has a current public contracts number from the Illinois Department of Human Rights pursuant to 44 Ill. Adm. Code 250.210, if required.  Proof of application prior to opening of bids or proposals will be sufficient for an initial determination;

 

8)         does not have any financial or other conflicts of interest under Sections 50-13 and 50-35 of the Code, or any other provisions of Article 50 of the Code;

 

9)         complies with all applicable laws concerning the vendor's entitlement to conduct business in Illinois;

 

10)         complies with all applicable provisions of the Prevailing Wage Act;

 

11)         complies with Subchapter VI ("Equal Employment Opportunities") of 42 USC 2000e et seq. and with Federal Executive Order No. 11246, as amended by Executive Order No. 11375;

 

12)         has a valid Federal Employer Identification Number or, if an individual, a valid Social Security Number;

 

13)         has a valid certificate of insurance showing the following coverages as applicable: general liability, professional liability, product liability, workers' compensation, completed operations, hazardous occupation and automobile; and

 

14)         participates, including its subcontractors, in applicable apprenticeship and training programs approved by and registered with the United States Department of Labor's Bureau of Apprenticeship and Training.

 

c)         Information Pertaining to Responsibility.  Information pertaining to responsibility shall be obtained from CDB prequalification files, bid documents, proposals and State vendor registration systems.  The prospective vendor may be required to supply additional information, if requested by CDB, the CPO or SPO, concerning the responsibility of the vendor.  The State may supplement this information from other sources and may require additional documentation at any time.  If the  vendor fails to supply the requested information, the determination of responsibility will be based upon any available information, the prospective vendor may be found not responsible.

 

d)         Duty Concerning Responsibility.  Before awarding a contract, the CPO or SPO must be satisfied that the prospective vendor is responsible.  Responsibility can be proven at any point from the time of bid until time of award.

 

e)         Written Determination of Non-Responsibility Required.  If a vendor who otherwise would have been awarded a contract is found to be not responsible, a written determination of non-responsibility setting forth the basis of the finding shall be prepared by CDB for approval by the CPO or SPO.  A copy of the determination shall be sent promptly to the non-responsible vendor.  The final determination shall be made part of the procurement file.

 

f)         Affiliated Companies.  Vendors that are newly formed business concerns having substantially the same owners, officers, directors or beneficiaries as a previously existing, non-responsible vendor may be declared non-responsible solely on that basis unless the new organization can demonstrate it was not set up for the purpose of avoiding an earlier declaration of non-responsibility.

SUBPART G: BID, PROPOSAL AND PERFORMANCE SECURITY

 

Section 8.2047  Security Requirements

 

a)         Vendors shall furnish security as specified in the solicitation or contract.  The cost of providing security will be borne by the vendor unless otherwise stated in the solicitation.

 

b)         Security, unless otherwise specified, may be in the form of cashier's check, certified check, money order, or irrevocable letter of credit or bond.  Any bond must be issued by a surety company authorized to do business in the State of Illinois and meeting the requirements set forth in the Standard Documents for Construction.

 

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

 

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 or for similar reasons.

 

e)         Bid Bond

 

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

 

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

SUBPART H: SPECIFICATIONS AND SAMPLES

 

Section 8.2050  Specifications and Samples

 

a)         Responsibilities Regarding Specifications.  Subject to the SPO's approval, the CDB shall have necessary specifications drafted.

 

b)         Development of Specifications

 

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

 

2)         Any specifications or standards adopted by business, industry, not-for-profit organization or governmental unit may be incorporated by reference.  Specifications for a construction project shall include reference to the minimum Green Building Act requirements for the project.

 

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 Illinois Procurement Code shall be considered and applied when required or appropriate.

 

c)         Brand Name Specification.  Bids for construction projects shall be based on providing all products, subcontractors or suppliers specified in the specifications.  When a brand name specification is used, a minimum of three brand names must be specified for each product.  Brand name product specifications shall allow that a bidder may propose additional products prior to bid opening.  Bidders may propose substitutions of a product, upon review and approval by CDB and the project A/E.  The product substitution process may be utilized regardless of whether only brand names are listed.  Substitutions shall be accepted before award and are subject to the review of the SPO.  Determinations on the acceptance of substitutions shall be included in the recommendation to award file.

 

1)         Brand name specifications may be used in a construction solicitation when:

 

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

 

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

 

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

 

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

 

2)         Brand name specifications shall designate a minimum of three brands and shall further state that substitutions may be allowed.

 

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

 

d)         Limited Source Product Specification.  CDB shall specify a minimum of three brand name products and shall identify sources to achieve whatever degree of competition is practicable.  If less than three brand names are specified, CDB will review and approve all such specifications, which are subject to review by the Procurement Officer upon request.  The procedure for review by CDB shall be contained in CDB's Design and Construction Manual.

 

e)         Specifications Prepared by Persons Other Than State Personnel.  Specifications may be prepared by persons other than State personnel, including, but not limited to, consultants, architects, engineers, designers or other drafters of specifications for public contracts.  CDB shall review and approve such specifications.  Vendors preparing specifications must affirm that no conflict of interest exists at time of submittal and review of the specifications by CDB and that it has accepted no gift or consideration intended to influence its judgment on the project.  Vendors may be requested to verify conflict of interest status at any time throughout a project.  No person or business shall submit specifications to a State agency unless requested to do so by an employee of the State [30 ILCS 500/50-10.5(e)].

 

1)         The SPO retains the authority for final approval of the specifications.  Contracts with vendors for the preparation of specifications shall require the specification writer to adhere to the Design and Construction Manual, the Code and this Part.

 

2)         The person or business that writes specifications for a particular procurement need shall not submit a bid or proposal, receive a contract to meet that procurement need, or have any financial interest in the product or service specified or the source from which it is procured.

 

f)         Prohibited Bidder and Contractors

 

1)         No person or business shall bid or enter into a contract if the person or business:

 

A)        Assisted an employee of the State of Illinois, who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract, by reviewing, drafting, directing, or preparing any IFB, an RFP or an RFI;

 

B)        Provided similar assistance, except as part of a publicly issued opportunity to review drafts of all or part of these documents. Similar assistance includes, but is not limited to, providing supplementary support or aid, information that serves as a basis for specifications, or the establishment or development of evaluation criteria.

 

2)         This subsection (f) does not prohibit a person or business from submitting a bid or proposal or entering into a contract if the person or business:

 

A)        Initiates a communication with an employee to provide general information about products, services or industry best practice and, if applicable, that communication is documented in accordance with Section 50-39 of the Act; or

 

B)        Responds to a communication initiated by an employee of CDB for the purposes of providing information to evaluate new products, trends, services or technologies.  [30 ILCS 500/50-10.5(e)]

 

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

 

4)         A vendor who develops technology, goods or services that represent industry trends and innovation and is not designed to meet the State's needs is not prohibited from bidding or offering.

 

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

SUBPART I: CONTRACTS

 

Section 8.2055  Types of Contracts

 

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

 

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

 

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

 

2)         The application of such things as overhead and profit to the price of a subcontract is not a cost-plus-a-percentage-of-cost contract.

 

c)         Types of Fixed-Price Contracts

 

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 authorize 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 Contracts.  A cost-reimbursement contract provides that the vendor will be reimbursed for allowable costs incurred in performing the contract, but will not receive a fee.

 

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 the maximum agreed upon cost (that is, the parties' agreed best estimate of the cost of performing the contract will vary inversely with the maximum costs of performance and consequently is dependent on how effectively the vendor controls cost in the performance of the contract).

 

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 an agreed basis for payment for materials supplied and labor performed.  Labor hour contracts provide only for the payment of labor performed.  The contracts shall contain a stated ceiling or an estimate that shall not be exceeded without prior SPO approval.

 

g)         Definite Quantity and Indefinite Quantity Contracts

 

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.

 

2)         Indefinite Quantity.  An indefinite quantity contract is a contract for an indefinite amount of supplies or services, within stated limits, to be furnished at specified times, or as ordered, that establishes unit prices of a fixed-price type.  Generally, an estimated quantity is based on historical usage or the best information available as to quantity as stated in the solicitation.  The contract may provide a minimum quantity the State is obligated to order and shall also provide for a maximum quantity provision that limits the State's ability to order.  If the contract identifies an estimated quantity, the State agency may order in the aggregate up to 20% more than the estimate without approval of the CPO or SPO.  For amounts that exceed 20% of the maximum quantity, a new procurement for the additional quantity is required.

 

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

 

i)          Option Provisions.  A solicitation may contain options for renewal, extension or purchase, and, if it does, the solicitation shall also include the requirements for exercising a given option, establish the term, and either establish the price or include the formula for establishing the price.  Contracts based on a solicitation may include only those options included in the solicitation, and other options shall be included as required terms in the contract.  Exercise of options shall be performed in accordance with the contract, the Code and other provisions of this Part.  Failure to include the options in the contract shall render the option provisions void.

 

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

 

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

 

Section 8.2060  Duration of Contracts − General

 

a)         General.  The duration of a construction or construction-related services contract, including potential renewals, may not exceed 10 years. unless a longer period is permitted by the Code

 

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

 

c)         Conditions for Use of Multi-Year Contracts.  A multi-year contract may be used when the period of performance exceeds a single year and when a multi-year contract will serve the best interest of the State by encouraging effective competition or otherwise promoting economies in State procurement.

 

d)         Multi-Year Contract Procedure.  The solicitation shall state:

 

1)         the proposed term;

 

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

 

3)         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 called for an initial term plus renewals, the renewals may be exercised without further procurement activity, except for the publication of the renewal in the Bulletin as required by Section 15-25 of the Code and Section 8.1525 of this Part and subject to review by the PPB under Section 5-30 of the Code.  The renewal terms and conditions shall not change except as provided in the contract (such as price escalations tied to an index).  Renewal options may be exercised by the State or by mutual agreement, but shall not be exercised solely at the option of the vendor.  Any renewal that requires modification to a material term or condition of the contract shall be treated as a new contract and shall be subject to competitive procurement procedures established by the Code and this Part.

 

2)         When the original contract was silent as to renewals, the renewal must be procured using one of the methods of source selection authorized by the Code and this Part.  The renewal shall start a new term not to exceed 10 years, except the term of a sole source contract renewal shall include previous sole source contracts and shall, in total, not exceed 10 years.

 

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 renewal 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.  PPB shall have up to 30 days to review and comment on the proposal.  The Procurement Policy Board may object to the proposed extension or renewal within 30 calendar days and require a hearing before the PPB prior to entering into the extension or renewal.  If the PPB does not object within 30 calendar days or takes affirmative action to recommend the extension or renewal, the CPO may enter into the extension or renewal of a contract.  The SPO assigned the agency may request a waiver of the review for reasons set forth in Section 20-60(c) of the Code.

 

Section 8.2065  Cancellation of Contracts

 

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

 

1)         The successful vendor inexcusably fails to furnish applicable insurance and bonds 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 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 material breach of contract or other unlawful act by the vendor.

 

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

 

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

 

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.

SUBPART J: PROTESTS, DISPUTES AND CONTRACT CONTROVERSIES

 

Section 8.2075  Protests

 

a)         Any person may submit a protest related to the notice of the procurement, the solicitation document, any pre-bid/proposal meeting or any decision to reject a late bid or proposal.

 

b)         Any person who has submitted a bid or proposal may protest a decision to reject the party's bid or proposal or to award to another vendor.

 

c)         The following procedures will govern the resolution of protests received by the CPO that are covered under this Subpart:

 

1)         Protest Review Officer.  The CPO may appoint one or more Protest Review Officers, who will not be CDB employees, to consider procurement related protests and make a recommendation to the CPO for resolution of a protest.  The CPO may adopt the recommendations or take other action.

 

2)         Subject of the Protest.  A protest may be filed during any phase of the solicitation and award process for a particular contract.

 

A)        The subject of the protest shall concern violation of the Illinois Procurement Code or other law, any associated rules, or the terms of the solicitation itself, including the fairness of the evaluation or award process.

 

B)        Protest procedures of this Section do not apply to issues of prequalification, suspension or debarment.

 

C)        Information relevant to a protest shall be made available to the protesting party for use in its protest.  The PRO or CPO shall determine relevancy of the information.

 

3)         Filing a Protest.  All protests shall be in writing and filed with the Chief Procurement Officer within 14 days after the protester knows or should have known of the facts giving rise to the protest.

 

A)        Any solicitation or addendum posted to the Bulletin or otherwise issued establishes the “known or should have known” date for the subject matter of the solicitation or addendum.  A protest is considered filed when physically received by the Protest Review or CPO office.  Protests filed after the 14 day period will not be considered. 

 

B)        The protest shall be contained in an envelope clearly labeled "Protest".  The written protest shall include, at a minimum, the following requirements:

 

i)          The name, address, e-mail if available, telephone and facsimile numbers of the protester.

 

ii)         The identification of the procurement or solicitation that is the subject of the protest.

 

iii)        All information establishing that the protester is an interested party.

 

iv)        A detailed statement of the factual and legal grounds of the protest, including all relevant documents and exhibits that establish the basis for the protest.

 

v)         All information establishing the timeliness of the protest.

 

vi)        The signature of the protester.

 

vii)       Specific relief sought.

 

4)         Stay of Award during a Protest.  When a protest has been filed and before an award has been made, the SPO will make no award of the contract until the protest has been resolved, unless the award of the contract without delay is necessary to protect the interests of the State. 

 

5)         Receipt of Protests.  All protests received by the CPO office will be distributed to CDB as soon as practical.

 

6)         Requested Information.  The protesting party must supply any additional information requested by the Protest Review Officer within the time periods set in the request.  If the protesting party fails to comply with the request, the CPO shall consider the protest on the basis of available information or may deny the protest.

 

7)         At the discretion of the CPO, a hearing may be scheduled in accordance with Subpart T.

 

8)         Decision.  A decision on a protest will be made as expeditiously as possible after receiving all relevant information.

 

A)        The protest will be sustained only if it is determined by the CPO that the protest conclusively demonstrates, by the preponderance of the relevant information submitted, a violation of the Code or other law, any associated rules or policies, or the solicitation itself, including the evaluation or award process.

 

B)        If the protest is sustained, the remedies available are limited to cancellation or revision of the solicitation, advertisement of the solicitation or award to the protesting party if the protesting party was originally denied award. 

 

C)        The decision of the CPO is final and conclusive unless clearly erroneous, arbitrary, capricious or contrary to law.  (See Section 20-75 of the Code.) 

 

9)         Effect of Judicial Proceedings.  If an action concerning the protest has commenced in a court or administrative body, the CPO may defer resolution of the protest pending the judicial or administrative determination.

 

Section 8.2076  Disputes and Contract Controversies

 

a)         In the event of a contract dispute or controversies, CDB and the vendor will exercise good faith efforts to resolve the matter fairly, amicably and in a timely manner. CDB shall commence an informal conference to investigate the merits of a contract dispute or controversy. CDB shall determine whether the dispute lacks merit, in consultation with the CPO, and that mediation will not be fruitful. If CDB, after consultation with the CPO, determines that mediation will not be fruitful, CDB will inform the other party or parties in writing of this determination, and the other parties may bring legal action without further pursuit of ADR. Otherwise, if the dispute is not settled within 90 days after the initial informal conference, a mediator will be appointed, unless the parties and the CPO agree to continue the informal discussions.

 

b)         When efforts to resolve disputes and controversies that may result in an amendment to the contract in the form of a change order, modification or settlement are not successful, the parties to the dispute shall utilize alternative dispute resolution (ADR) methods required by the contract or bid documents.  At the discretion of CDB, and under the authority of the CPO, an independent neutral party can be identified at the onset of a project to facilitate ADR requests. All related or associated disputes can be combined into a single Alternative Dispute Resolution (ADR) process.  At a minimum, ADR shall be a condition precedent to the filing of any court action valued in excess of $25,000. The contents of communications between the CDB staff and CPO staff regarding disputes will not be divulged to a third party except by mutual agreement of CDB and the CPO or in accordance with the order of a court of competent jurisdiction.  Once the parties have agreed on a mediator, CPO staff will not discuss pending disputes with the vendor or the vendor's attorney without CDB legal staff present.  When ADR is utilized, the Contractor, CDB and the CPO agree to have in attendance a person with actual authority to resolve the dispute.  When it is apparent that approval of CDB's Board is required, CDB personnel shall notify all concerned at the earliest possible time when it is apparent that Board approval will be required for ultimate resolution.

 

1)         Disputes less than $25,000 shall utilize an expedited process of ADR to attempt to conclude the dispute and that may result in an amendment to the contract in the form of a change order, modification or settlement in 60 days or less, when practical.

 

2)         Disputes greater than $25,000 require the parties to use the best efforts to expeditiously resolve the matter. 

 

3)         Disputes based on claims that include requests for additional compensation for delays in project completion will commence within 90 days after substantial completion of a project.

 

4)         This Section shall not apply to mechanics lien actions, unless the parties to the lien consent, nor to contract terminations, CDB's right to carry out the work, and non-project matters such as suspension of prequalification.  CDB shall immediately notify the CPO of any dispute that may result in an amendment to the contract in the form of a change order, modification or settlement.  The CPO's approval shall be required to resolve a dispute resulting in payment to a party to the dispute, other than the State of Illinois, or any other procurement action under a contract with CDB for a period of 10 months after substantial completion of a project. During the 10 month period, CDB shall provide status updates on open issues, including requests for Alternative Dispute Resolution, to the CPO and contractor at no more than 90 day intervals. Failure to provide status updates shall increase the CPO approval period for each day of delay.

 

5)         "Dispute" means any contested claim or matter growing out of the project or CDB's project contracts regarding payment or time for performance, but not including personal injury cases (including worker injuries), vehicle accidents, contractor-subcontractor matters in the nature of lien actions, or employment matters.

 

c)         Effect of Judicial Proceedings. This Section shall not apply in cases in which CDB requests and receives representation from the Illinois Attorney General.

SUBPART K: PROCUREMENT FILES

 

Section 8.2080  Public Procurement File

 

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

 

b)         The procurement file shall be maintained by CDB or under the jurisdiction of the CPO. 

 

c)         Documentation of Procurement Actions.  CDB, under the direction of the SPO, shall maintain an ongoing procurement file or associated contract file of all substantive documents and records of communications that pertain to the procurement and any resulting contract from the time of initiation of the procurement through the entire lifespan of the procurement.  Unless otherwise indicated in this Section, all documents shall be included in the file within 3 days after finalization of the document.  When applicable, this shall include, but is not limited to:

 

1)         All determination memos showing approvals to proceed at all stages;

 

2)         Procurement Bulletin Postings;

 

3)         Solicitation document (e.g., IFB) and all amendments, clarifications and Best & Final Offer requests;

 

4)         Vendors' responses, including clarifications and responses to Best & Final Offer requests;

 

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

 

6)         Protest and resolution;

 

7)         Contract;

 

8)         Change order, amendments, renewal or extension;

 

9)         All communications and determinations made by PPB;

 

10)        Contractor Performance reviews;

 

11)        If a project labor agreement (PLA) is applicable to a project, a written determination of the benefits of the PLA pursuant to the Project Labor Agreements Act;

 

12)        Any other documents, at the direction of the CPO;

 

13)        All information from subsections (c)(1) through (c)(7), less information exempt from disclosure under the Freedom of Information Act [5 ILCS 140] or other law (for example the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] that exempts contractor performance reviews), shall be prepared and available for inspection and copying, within 7 days after the award is posted to the Bulletin.  All post-award procurement documents shall be added to the procurement file within 3 days after finalization.

 

d)       In accordance with the Illinois Procurement Code and this Part, relevant documents shall be made available on request prior to inclusion in the procurement files for the purpose of evaluation and/or filing a protest, except those documents that are exempted by law from disclosure.

 

Section 8.2084  Record Retention

 

a)         Retention of Bulletin Information.  Information published in the Bulletin shall be retained for a period of 3 years.  Posted information can be placed in an archive located on the Bulletin and publicly available after 90 days.

 

b)         Books and records that relate to a CDB procurement and contract, including subcontracts, and that support amounts charged shall be maintained:

 

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 CDB according to the approved Record Retention plan or from the date of final payment under the prime contract; and for such longer period of time as is necessary to complete ongoing or announced audits, whichever is longer.

 

Section 8.2086  Filing with the Comptroller

 

a)         Filing with Comptroller

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

 

b)         Late Filing Affidavits

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

 

c)         Timely Execution of Contracts

 

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 goods that were received or services that were rendered before the contract was reduced to writing and signed by all necessary parties.  These prohibitions do not apply to an emergency purchase if notice of the emergency purchase is filed with the PPB and published in the Bulletin as required by the Code and this Part.  [30 ILCS 500/20-80(d)]

 

2)         The Comptroller and Treasurer may waive the requirement of this subsection (c) upon request of the CPO if the CPO submits to them a written statement setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services performed.  The CPO will submit a waiver request only upon a request of the CDB that is supported by written justification that will fully apprise the CPO as well as the Comptroller and Treasurer of the circumstances and reasons the contract could not be reduced to writing in a timely manner.  If the CPO agrees that the contract could not have been timely reduced to writing, the CPO will request the waiver from the Comptroller and Treasurer.

SUBPART L: WORKING CONDITIONS

 

Section 8.2560  Prevailing Wage

 

a)         Vendors awarded contracts or subcontracts on public works projects shall comply with the requirements of the Prevailing Wage Act.

 

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

 

c)         This Section does not apply to services furnished under contracts for QBS, unless categories of work within that contract are identified as being covered by the prevailing wage rate established by the Illinois DOL; to professional or artistic services; to vocational programs of training for persons with physical or mental disabilities; or to qualified not-for-profit agencies for persons with severe disabilities.

SUBPART M: GENERAL PROVISIONS RELATED TO CONSTRUCTION

 

Section 8.3000  Notification of Procurement

 

As soon as practicable, but no later than 7 days after CDB has decided to move forward with a procurement, notice of a need for procurement will be provided to the CPO.

 

Section 8.3005  Construction and Construction Related Professional Services

 

Construction Contracts.  Unless an exception authorized by the Code applies, CDB contracts for construction shall be procured by competitive sealed bidding in accordance with Section 8.2010 of this Part and this Section. Solicitations for bids shall be in conformance with the Illinois Procurement Code, the rules of the CPO, and in exigent circumstances, CPO Notices.  Contracts shall be awarded in accordance with those authorities and with the provisions set forth in the SDC used by CDB unless otherwise specified in the advertisement for bids published in the Procurement Bulletin, or as authorized by law.

 

Section 8.3015  Method of Source Selection

 

a)         Architect and Engineer Contracts.  Solicitation for procurement of services of architects/engineers (A/Es), or related professionals, shall be in accordance with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act, the Illinois Procurement Code and this Part.

 

b)         Construction Management Services.  Procurement of a construction manager for project services, which may include, but are not limited to, scheduling, contractor coordination, and administration of pay requests, but not including design services, shall be made in accordance with Article 33 of the Code.

 

c)         Illinois Correctional Industries.  Procurement from Illinois Correctional Industries constitutes contracting between State governmental bodies, which is exempt from Code requirements, and shall be done in accordance with this Part. These procurements may utilize an annual master contract with agreed-upon unit prices for construction services, against which sub-orders may be placed for specific CDB projects.  Specifications that require a vendor to obtain materials or services from another source shall identify at least three sources for the material or services, unless CDB requests, and the SPO approves, a specification with only one or two sources.

 

d)         Single-Prime.  In accordance with Section 30-30 of the Code and subject to prior approval by PPB, CDB may, on certain projects, retain one contractor to provide all subdivisions of the work necessary to complete the construction contract. 

 

e)         Design-Build.  In accordance with Section 5 of the Design-Build Procurement Act, CDB may use the design-build delivery method for certain projects, provided it first makes a written determination that it is in the best interest of the State to enter into a design-build contract.  This written determination must include a description of particular advantages and must be filed with the Procurement Policy Board within 15 days after the initial determination.

 

Section 8.3025  Retention Trust

 

a)         Contractors may elect to have retention deposited in a trust provided that:

 

1)         The project is funded by direct appropriation to CDB;

 

2)         the contract exceeds $300,000; and

 

3)         the specified contract time is 360 calendar days or longer.

 

b)         A retention trust agreement must be entered into before application by the contractor for the first payment.  The agreement will include, but not be limited to, the following:

 

1)         the amount to be deposited;

 

2)         terms and conditions of payment in case of default by the contractor;

 

3)         termination upon completion, default or other breach; and

 

4)         the contractor's responsibility for obtaining the written consent of the bank trustee and for paying all costs and fees associated with the trust.

 

c)         Only CDB's retention trust agreement form is acceptable.  In the event the contractor fails to deliver the trust agreement duly executed by the contractor and the bank prior to, or at the time of, receipt of the first partial payment, CDB may not execute the trust agreement.  CDB may cancel the retention trust agreement for reason of non-performance and demand return of any deposits by the bank.

 

Section 8.3030  Construction Project Specifications

 

When design-bid-build delivery is utilized, except in single prime delivery, and the value of the construction contracts exceed $250,000, separate bidding will be specified for at least the five subdivisions of work enumerated by the Code: plumbing, heating, ventilating, electric and general.  If appropriate to the project and advantageous to the State, CDB may add additional subdivisions, including sprinkler work, fire protection, or asbestos abatement, as may be specified in the bid.  If, prior to bidding, the work in a particular subdivision is less than the small purchase threshold established in Section 20-20 of the Code, the work may be added to another subdivision.

 

Section 8.3035  Expenditure in Excess of Contract Price

 

a)         All change orders, proceed orders and modifications shall be in writing and contain the appropriate authorizations from the agency, user agency and CPO.  Documentation shall include a thorough description of the work to be performed, the reason for the change, and any allocation of liability for the increased/decreased cost.

 

b)         Only work that is germane to the original contract shall be added by change order, proceed order or modification.  Proposed change orders, proceed orders or modifications that are determined by CDB to not be germane to the original contract shall be procured in accordance with the Code and this Part.

 

c)         Vendors shall not perform any changed work prior to written authorization.  Written authorization for a change order, proceed order or modification shall be signed and executed by all parties, including the CPO or the SPO, as appropriate, prior to vendor performance of any changed work. Vendors and CDB shall be required to provide written explanations regarding why changed work was commenced prior to authorization.

 

d)         Notice of approved change orders, proceed orders and modifications shall be published in the Bulletin.

 

e)         Change orders, amendments, proceed orders and modifications are subject to Section 5-30 of the Code.

SUBPART N: SELECTION OF CONSTRUCTION-RELATED PROFESSIONAL SERVICES, CONSTRUCTION MANAGEMENT SERVICES AND DESIGN-BUILD ENTITIES

 

Section 8.3040  Purpose

 

CDB shall procure architectural, engineering and land surveying services in compliance with the QBS Act.  CDB shall procure construction management services in compliance with Article 33 of the Code (Construction Management Services).  CDB shall select DB services in compliance with the DB Act. Primary responsibility for the selection, grounded on qualifications, of construction-related services under the QBS and DB Acts and Section 30-45 of the Procurement Code, shall be the responsibility of CDB. Procurement functions related to the selection, and governed by the Procurement Code, shall be the responsibility of the CPO pursuant to Section 10-20(a)(1) and 50-1 of the Procurement Code. These procurement functions include determinations related to the fairness and transparency of the selection (pursuant to Sections 20-10(f) and (g), 20-15(f) and 20-35(e) of the Code), determinations of responsibility and responsiveness and compliance with all relevant provisions of the Procurement Code.

 

Section 8.3043 Other Acts

 

The SPO shall review procurements for compliance with Section 30-45 of the Code (Other Acts). This review is governed by other agencies' responsibility for administration of those other Acts (e.g., for the Prevailing Wage Act, the Department of Labor), and can include, but is not limited to, debarment, ineligibility status, or other sanctions as determined by a State agency under those Acts.

 

Section 8.3045  Written Determination

 

a)         Before electing to use DB on a given project, CDB shall make a written determination, including a description as to the particular advantages of the DB procurement method for that project.  The written determination shall be reviewed and approved by the CPO as to the adequacy of information in subsections (a)(1) through (5), but CDB shall determine whether the DB concept is to be pursued. Approval by the CPO will not be unreasonably withheld.  The following factors shall be considered and addressed in that statement:

 

1)         The probability that the DB procurement method will be in the best interest of the State by providing a material savings of time or cost over the design-bid-build or other delivery system. The best interest of the State justification will show the specific benefits of using the DB method, including documentation of the estimates or scheduling impacts.

 

2)         The type and size of the project and its suitability to the DB procurement method.

 

3)         The ability of CDB to define and provide comprehensive scope and performance criteria for the project.

 

4)         The project will comply with the disadvantaged business and equal employment practices of the State, as established in the BEMFD, Section 45-57 of the Code and Section 2-105 of the Illinois Human Rights Act.

 

5)         Within 15 days after the initial determination, CDB will provide an advisory copy of the written determination to PPB, and shall maintain the full record of determination for 5 years.

 

b)         Before electing to use CM on a given project, CDB shall make a written determination, including a description as to the particular advantages of the CM procurement method for that project.  The written determination shall be reviewed and approved by the CPO as to the adequacy of information in subsections (a)(1) through (5) and in the written determination. Approval by the CPO will not be unreasonably withheld.

 

Section 8.3050  Public Notice

 

a)         With the exception of contracts with an estimated basic professional fee of less than $25,000, whenever CDB requires the services of an A/E or land surveyor, CDB shall submit to the CPO a notice of the need for services, also known as an RFP, for publication in the Bulletin.  In addition, CDB may publish a list of projects whose contract values do not exceed $25,000.  The CPO shall publish in the Bulletin any notice that meets the requirements of this Part.

 

b)         When the services of a CM are required, CDB shall publish a request for proposals setting forth the nature of the projects.

 

c)         The public notice shall include an abstract of the services required for each project, a description of each project, and the required expertise of the A/E or CM to be considered.  The public notice shall also include the statement of qualifications form to be completed for each project, as well as the date and time by which submittal of the statement of qualifications will be accepted.

 

d)         Notice shall be posted in CDB's Procurement Bulletin and may be published in the official State newspaper or otherwise made available in print.  CDB may also publish the notice in related construction industry service publications.

 

e)         In addition to the other requirements of this Section, a request for proposal for CM services will also be mailed to each vendor prequalified under Section 33-10 of the Code.  When CDB establishes additional criteria for special projects under 44 Ill. Adm. Code 900.140 (Prequalification of Construction Managers), the notice shall be published at least 30 days before the date the special prequalification application or the statement of qualifications is due.

 

f)         The public notice shall be published at least 14 days prior to the date for submittal of the statement of qualifications.

 

g)         CM prequalification standards may be revised to be more closely related to the needs or environment of the special project, e.g., required vendor and/or personnel experience may be limited to a particular size of project or to experience in a particular environment, such as correctional facility work.

 

Section 8.3055  Design-Build Request for Proposal

 

a)         Notice of intent to issue a design build RFP shall be provided 14 days prior to issuing the RFP.

 

b)         CDB shall provide a copy of the request for proposal to any party requesting a copy.

 

c)         An RFP shall be prepared by CDB for each project and will contain the following information:

 

1)         The Capital Development Board as the issuing agency;

 

2)         A preliminary schedule for the completion of the contract;

 

3)         The proposed budget for the project, the source of funds, and the currently available funds at the time the RFP is submitted;

 

4)         Prequalification criteria for DB entities wishing to submit proposals.  The criteria shall include CDB's normal prequalification, licensing, registration, and other requirements and any additional criteria deemed necessary by CDB;

 

5)         Material requirements of the contract, including the proposed terms and conditions, required performance and payment bonds, insurance, the entity's plan to comply with the utilization goals for business enterprises established in the BEMFD Act and with Section 2-105 of the Illinois Human Rights Act, and any other requirements deemed important by CDB;

 

6)         The scope and performance criteria shall:

 

A)        Be in sufficient detail and contain adequate information to reasonably apprise the qualified DB entities of CDB's overall programmatic needs and goals, including criteria and preliminary design plans, general budget parameters, schedule and delivery requirements;

 

B)        Include a description of the level of design to be provided in the proposals, including the scope and type of renderings, drawings and specifications that will be required by CDB to be produced by the DB entities;

 

7)         The evaluation criteria for each phase of the solicitation, including relative importance or weighting factor of each item (see Sections 1030.170 (Phase 1 Evaluation) and 1030.190 (Phase 2 Evaluation);

 

8)         The number of entities (no fewer than 2 and no more than 6) that will be considered for the technical and cost evaluation phase (Phase 2);

 

9)         The submittal schedule:

 

A)        For projects estimated to cost less than $10 million, at least 21 days shall be allowed to prepare and submit Phase 1 proposals after the date of the issuance of the RFP;

 

B)        For projects estimated to cost more than $10 million, at least 28 days shall be allowed to prepare and submit Phase 1 proposals after the date of the issuance of the RFP;

 

C)        For all projects, at least 30 days shall be allowed to prepare and submit Phase 2 proposals after the selection of entities from the Phase 1 evaluation is completed;

 

10)         Any other relevant information that CDB chooses to supply.

 

d)       The DB entity shall be entitled to rely upon the accuracy of information included in the RFP in the development of its proposal.

 

Section 8.3060  Preparation of Design-Build Scope and Performance Criteria

 

a)         The scope and performance criteria shall be prepared by a design professional who is an employee of CDB, or CDB may contract with an independent design professional selected under the QBS Act to provide these services.

 

b)         The design professional and/or officers of the design vendor that prepare the scope and performance criteria are prohibited from participating in any DB entity proposal for the project.

 

Section 8.3065  Submittal Requirements

 

a)         A/E and CM

 

All A/Es submitting statements of qualifications for a specific project shall be prequalified with CDB prior to the date and time that the offers are due.  All CMs submitting statements of qualifications for a specific project shall be prequalified with CDB as CMs prior to the date and time that the submittals are due.  Failure to be prequalified will result in rejection of the submittals.

 

b)         In order to be considered responsive, a submittal must include:

 

1)         A letter of interest that contains a statement of qualifications (CDB Form 255);

 

2)         The names of persons who will perform the services, including the designated staff of any listed consultant, and their project assignments or duties;

 

3)         If a statement of qualifications is required:

 

A)        the names of persons who will perform the services, including the designated staff of any listed consultant, and their project assignments or duties;

 

B)        for each person listed, a resume describing the person's experience and expertise relevant to performance of the assignment;

 

4)         A summary of the vendor's history and experience that would demonstrate its administrative ability to successfully carry out projects of the magnitude or complexity of the offered project.

 

c)         If the offeror will use subcontractors to perform professional services, then the following shall be required:

 

1)         Those subcontractors shall also be prequalified with CDB prior to the date and time that the submittals are due, or the offer shall be rejected; and

 

2)         The offeror shall clearly indicate the anticipated percentage of the services that will be performed by each listed subcontractor and identify whether each consultant is certified as a MBE, FBE, VBE or SDVOB.

 

d)         Failure to comply with the requirements of this Section regarding subcontractors shall result in rejection of the submittal.

 

e)         If the offeror is a DB entity, the following shall be required:

 

1)         Proposals must be properly identified and sealed.

 

2)         Phase 1 proposals shall include a list of all design professionals and other entities, as defined in Section 30-30 of the Code, to which any work may be subcontracted during the performance of the contract.

 

3)         Phase 1 proposals shall include a list of all entities that will perform any of the 5 subdivisions of work defined in Section 30-30 of the Code.

 

4)         Phase 2 proposals shall include a bid bond and security in the format and amount designated in the RFPs.

 

5)         Phase 2 proposals shall contain a separate sealed envelope with the cost information.

 

6)         The drawings and specifications of the proposal shall remain the property of the DB entity.

 

7)         Subject to approval by the CPO, proposals may be withdrawn prior to evaluation for any cause.  After evaluation begins by CDB, proposals may only be withdrawn if there is clear and convincing evidence of material error.

 

Section 8.3070  Selection Procedures

 

a)         CDB shall select three A/Es or CMs qualified to provide the professional services for a specific project.  These A/Es or CMs shall be ranked in order of qualifications.  Board approval of these A/Es or CMs shall be final and binding.

 

b)         In the event that fewer than three A/Es or CMs submit statements of qualifications for a specific project, if CDB determines that one or both are qualified to perform the services, CDB may proceed with the selection process.

 

Section 8.3075  Evaluation Committee

 

a)         A/E or CM Evaluation Committee.  The CDB Executive Director shall appoint an agency employee to serve as chair of the evaluation committee.  The evaluation committee chairman shall appoint a committee to recommend to the Executive Director and the Board a list of A/Es or CMs qualified to perform the required  services.  This committee may be established for each selection and may be composed of standing members and rotating members from CDB staff.  In addition to the CDB staff members, a representative from the user agency may be requested to be a member of the committee.  A member of the public can be included in the committee.

 

b)         DB Selection Committee

 

1)         CDB shall establish a committee to evaluate and select the DB Entity.

 

2)         The committee shall consist of 5 or 7 members and include at least one licensed design professional and 2 members of the public.  Public members may not be employed by or associated with any vendor holding a contract with CDB.

 

A)        One public member shall be nominated by associations representing the general design or construction industry and one member shall be nominated by associations that represent minority or female-owned design or construction industry businesses.

 

B)        The licensed design professional may be an employee of CDB or a representative of the vendor that prepared the scope and performance criteria.

 

c)         The selection committee may be designated for a set term or for the particular project, subject to the RFP.

 

d)         The members of any selection committee must certify for each project that no conflict of interest exists between the members and any entities submitting proposals or statements of qualifications.  If a conflict exists, the member must be replaced before any review of proposals or statements of qualifications.

 

Section 8.3080  Evaluation Procedures

 

a)         In making its recommendations, the selection committee may consider, among other factors:

 

1)         The A/E's or CM's qualifications.

 

2)         The ability of professional personnel submitted by the A/E or CM.

 

3)         The A/E's or CM's past record and experience.

 

4)         The prior performance of the A/E or CM on CDB professional services agreements.  For CMs, this shall be determined by review of the CM Performance Evaluations on previous CM projects, Performance Evaluations of the CM vendor on projects in which it participated as an A/E or contractor, and any other related material.

 

A)        CDB shall evaluate the performance of each firm upon completion of a contract.  Evaluations shall be made available to the firm and the firm may submit a written response, with the evaluation and response retained solely by CDB.  The evaluation and response shall not be made available to any other person or firm and is exempt from disclosure under the Freedom of Information Act [5 ILCS 140].  The evaluation shall be based on the terms identified in the construction manager's contract.  [30 ILCS 500/33-45]

 

B)        In addition to subsection (a)(4)(A), CDB reserves the right to evaluate a firm during a project, when performance issues warrant that action.

 

C)        Any firm receiving a negative evaluation at any time during a project shall be notified of such evaluation within seven days of its issuance.

 

5)         The willingness of the vendor to meet time requirements.

 

6)         The location of the project relative to the vendor's place of business.

 

7)         The results of preliminary evaluations performed by CDB staff.

 

8)         The current work load of the A/Es or CMs and their prior selections by CDB.  This determination shall be in writing and be reviewed by the CPO.

 

9)         Professional references for work performed on similar projects.

 

10)         Interviews conducted with the A/Es or CMs.

 

11)         Minority, female and veterans business goals of programs set out in 44 Ill. Adm. Code 1000.140 and 44 Ill. Adm. Code 20.

 

b)         Before beginning review of a CM's statement of qualifications, the committee shall prepare a table of the factors on which the CMs will be rated and the weight to be assigned to each factor.  The table of factors, and the scores of each reviewed submittal, will be kept on file for no less than 2 years from the date of the selection.

 

c)         In no case shall the committee, prior to selecting an A/E or CM for negotiation, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost, or any other measure of compensation.  Submission of pricing information in a separate envelope to be opened at a later time shall not be allowed.

 

Section 8.3085  Preliminary Evaluations

 

CDB may appoint staff members to perform a preliminary evaluation (prescreening) to provide a preliminary ranking of the A/Es or CMs for the committee's consideration.  This prescreening shall consider, among other factors, the relevant project experience of the prospective A/Es or CMs and the expertise and experience of the vendor and its consultant staff to be assigned to the project if the vendor is selected.

 

Section 8.3090  Interviews

 

a)         The evaluation committee shall conduct interviews when the estimated value of the basic services fee exceeds $300,000. The CDB Executive Director may choose to conduct interviews for smaller projects under special circumstances.  A minimum of three vendors will be interviewed unless fewer than three submittals are received.  The CDB Executive Director, in consultation with the Board and with approval of the CPO, may exempt any contract from requiring interviews.

 

b)         CDB may choose to conduct interviews on DB projects when project complexity or other special circumstances warrant doing so.  In these cases, all vendors on the Phase 2 shortlist will be interviewed.  These circumstances, if known, will be included in CDB's initial written determination (see 44 Ill. Adm. Code 1030.120) and the interview requirement will be part of the original RFP.  If circumstances become known later, CDB will amend its written determination and notify the Phase 2 shortlist entities by written amendment of the RFP.

 

Section 8.3095  Phase 1 Design-Build Evaluation

 

a)         In Phase 1, CDB will evaluate and shortlist the DB entities based on qualifications submitted in response to the RFP.

 

b)         Evaluation shall be based on the prequalification requirements, evaluation criteria and relative importance or weighting of evaluation criteria as set forth in the RFP.

 

c)         Proposals shall not be reviewed until after the deadline for submission has passed.

 

d)         Proposals must meet all material requirements of the RFP or they may be rejected as non-responsive.

 

e)         CDB shall have the right to reject any and all proposals subject to CPO approval.

 

f)         CDB shall maintain a record of the evaluation scoring to be disclosed in event of a protest regarding the solicitation.

 

g)         Phase 1 evaluation criteria shall include:

 

1)         experience of personnel;

 

2)         successful experience with similar project types;

 

3)         financial capability in relation to the size of the project;

 

4)         timeliness of past performance;

 

5)         experience with similarly sized projects;

 

6)         successful reference checks of the firm;

 

7)         commitment to assign personnel for the duration of the project;

 

8)         qualifications of the entity's design consultants;

 

9)         CDB prequalification in good standing of any subcontractor proposed to perform any of the 5 subdivisions of work defined in Section 30-30 of the Code;

 

10)         Ability or past performance in meeting or exhausting good faith efforts to meet the utilization goals for business enterprises established in the BEMFD Act, Section 45-57 of the Code and with Section 2-105 of the Illinois Human Rights Act;

 

11)         Other relevant criteria deemed necessary by CDB.

 

h)         CDB will eliminate any DB entity from consideration for evaluation or award if the entity has any pecuniary interest in the project or has other relationships or circumstances, including, but not limited to, long-term leasehold, mutual performance, or development contracts with CDB, that may give the DB entity a financial or tangible advantage over other DB entities in the preparation, evaluation or performance of the DB contract or that create the appearance of impropriety.

 

i)          CDB will not consider any proposal that does not include the entity's plan to comply with the requirements established in the BEMFD Act and with Section 2-105 of the Illinois Human Rights Act, if applicable.

 

j)          CDB will publish the names of all DB entities submitting Phase 1 proposals on CDB's volume of the Procurement Bulletin and in the next Professional Services Bulletin (within the CDB volume of the Procurement Bulletin) after the deadline for submission.

 

Section 8.3100  Design-Build Shortlist

 

a)         Upon completion of the Phase 1 qualifications evaluation, CDB shall create a shortlist of no fewer than 2 and no more than 6 (or the maximum number noted in the RFP) of the most highly qualified DB entities and shall be reviewed by the CPO for conformance with the evaluation criteria in Section 8.3095.

 

b)         CDB shall notify in writing the entities selected for the shortlist.

 

1)         The notification shall commence the period for preparation of Phase 2 submittals as listed in the RFP.

 

2)         CDB may extend the period beyond that listed in the RFP, at its discretion, by including the new deadline in the written notification.

 

c)         All DB entities selected for Phase 2 evaluation shall be published on CDB's volume of the Procurement Bulletin after that determination.

 

Section 8.3105  Phase 2 Design-Build Evaluation

 

a)         In Phase 2, CDB will evaluate and rank the selected DB entities based on their technical and cost proposals.

 

b)         Evaluation shall be based on the technical and cost submission components and relative importance or weighting of the technical and cost submission components as set forth in the RFP.

 

c)         Proposals shall not be reviewed until after the deadline for submission has passed.

 

d)         Proposals must meet all material requirements of the RFP or they may be rejected as non-responsive.

 

e)         CDB shall have the right to reject any and all proposals subject to approval by the CPO.

 

f)         CDB shall maintain a record of the evaluation scoring to be disclosed in event of a protest.

 

g)         CDB shall include the following criteria in the Phase 2 technical evaluation of DB entities:

 

1)         compliance with objectives of the project;

 

2)         compliance of proposed services to the RFP requirements;

 

3)         quality of products or materials proposed;

 

4)         quality of design parameters;

 

5)         design concepts;

 

6)         innovation in meeting the scope and performance criteria;

 

7)         constructability of the proposed project;

 

8)         other relevant criteria deemed necessary by CDB.

 

h)         CDB shall include the following criteria in every Phase 2 cost evaluation:

 

1)         total project cost;

 

2)         construction costs;

 

3)         time of completion;

 

4)         other relevant criteria deemed necessary by CDB;

 

5)         a total project cost criteria weighting factor of 25% in accordance with 30 ILCS 537/30(c).

 

i)          CDB shall directly employ or retain a licensed design professional to evaluate the technical and cost submissions to determine if the technical submissions are in accordance with generally accepted industry standards.

 

Section 8.3110  Delegation of Architect/Engineer Evaluations

 

a)         CDB may delegate the evaluation of prospective A/Es to the user agency (school district, college, university, Illinois Community College Board or unit of local government).  The user agency shall be required to comply with this Part, the QBS Act or the Local Government Professional Services Selection Act (LGPSS Act), as may be applicable.

 

b)         Recommendations pursuant to the QBS Act for basic service fees of $25,000 or more shall state the three selected vendors ranked in order of qualifications.

 

c)         CDB shall be permitted to assign a member of its staff to be a voting member of the user agency's evaluation committee.

 

d)         The user agency shall transmit its recommendations to CDB for review and approval of the Board.

 

e)         CDB will provide a form for submitting the recommendations.  Transmittal to CDB shall include a letter with a certification statement requiring an authorized signature verifying that the selections were made in accordance with the QBS Act or the LGPSS Act.

 

f)         CDB may request the user agency make other recommendations if the vendors recommended are not acceptable to CDB.

 

Section 8.3115  Award of Design-Build Contract

 

a)         CDB may award the DB contract to the highest overall ranked entity based on the Phase 2 submissions.

 

b)         Notice of award shall be made in writing.  Unsuccessful entities shall also be notified in writing.

 

c)         CDB may not request a best and final offer after the receipt of proposals.

 

d)         CDB may negotiate with the selected DB entity after award, but prior to contract execution, for the purpose of securing better terms than originally proposed, provided that the salient features of the RFP are not diminished.

 

Section 8.3120  Small Projects

 

a)         For contracts whose estimated value is less than $25,000, CDB may select any prequalified A/E in accordance with Section 45 of the QBS Act.

 

b)         For contracts whose value is less than $25,000, CDB may select any prequalified CM in accordance with Section 33-35 of the Code.

 

c)         In any case in which the total overall cost of the project is estimated to be less than $10 million, CDB may combine the two-phase procedure for Design-Build submittals into one combined step, provided that all the requirements of evaluation are performed in accordance with this Part.

 

Section 8.3125  Emergency Projects

 

a)         CDB may immediately select an A/E when it is in the best interest of the State or in emergencies to protect public health or safety in accordance with Section 50 of the QBS Act.

 

b)         CDB may immediately select a CM when it is in the best interest of the State or in emergencies to protect public health or safety in accordance with Section 33-40 of the Code.

 

Section 8.3130  Construction Manager Procurement Limitations

 

a)         A CM cannot participate in a selection process if it or a substantially affiliated vendor is under contract or in the process of contracting with CDB for other goods or services required for the project and the CM's duties will involve or relate to those goods or services.

 

b)         A CM selected to provide construction management services, or a substantially affiliated vendor, may not bid on or otherwise be awarded a construction contract for the project.

 

c)         Notwithstanding the provisions of subsections (a) and (b), when it is determined in writing to be in the State's best interest, the CM may provide or perform, directly or through unrelated contractors, basic services for which reimbursement is provided in the general conditions of the CM contract, or any other goods or service that does not conflict with or give the appearance of conflicting with the CM's duties.

 

d)         A vendor is considered to be "substantially affiliated" for the purpose of this Section if:

 

1)         the affiliated firm shares more than 5% common ownership with the CM; or

 

2)         the individuals with more than 5% ownership interest, any officer or director of the CM firm, or any individual authorized to sign bids, proposals or contracts for the CM firm has any of these same relationships with, or owns or controls more than 5% of, the affiliated firm or is an officer or director of, or is authorized to sign bids, proposal or contracts for, the affiliated firm.

 

Section 8.3135  Publication of Award

 

The names of the three recommended A/E, and CM firms and the respective projects shall be published in CDB's Procurement Bulletin within 3 days after the selection and prior to Board action on the selection.  The contract award shall be posted no later than one day after the board selection.  All other A/E and CM awards that do not require board action shall be posted no later than the next business day.  The protest period shall not begin until such publication.

 

Section 8.3140  Design-Build Reports and Evaluations

 

a)         CDB shall require each selected DB entity to submit a written report at the end of every 6 month period following the contract award, and again prior to final contract payout and closure, detailing its efforts and success in implementing the entity's plan to comply with the utilization goals for business enterprises established in the BEMFD Act and Section 2-105 of the Illinois Human Rights Act.

 

b)         If the entity's performance in implementing the plan falls short of the performance measures and outcomes set forth in the plans submitted by the entity during the proposal process, CDB shall require a detailed written report informing the General Assembly and the Governor whether and to what degree the DB entity promoted the utilization goals for business enterprises established in the BEMFD Act and Section 2-105 of the Illinois Human Rights Act.

 

Section 8.3145  Federal Requirements

 

CDB will comply with federal law and regulations and take all necessary steps to adapt the rules, policies and procedures to remain eligible for federal aid.

 

Section 8.3150  Procurement Under the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act

 

Solicitation for procurement of services of architects/engineers (A/Es), or related professionals, shall be in accordance with this Subpart with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act and CDB's rules (44 Ill. Adm. Code 1000).

 

Section 8.3155  Procurement Under the Design-Build Procurement Act

 

Solicitation for procurement of design-build services shall be in accordance with this Subpart and the Design-Build Procurement Act and CDB's rules (44 Ill. Adm. Code 1030).

SUBPART O: PREFERENCES

 

Section 8.4505  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.

 

Section 8.4510  Resident Vendor Preference

 

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

 

b)         In breaking a tie bid or proposal, as described in Section 8.2037, an Illinois resident vendor shall be given the award.

 

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

 

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

 

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

 

Section 8.4526  Environmentally Preferable Procurement

 

Construction shall be accomplished in accordance with the Green Buildings Act.

 

Section 8.4535  Qualified Not-for-Profit Agencies for Persons with Severe Disabilities

 

a)         Use.  The CPO shall distribute to each SPO and CDB a list of supplies and services available from qualified not-for-profit agencies for persons with severe disabilities (sheltered workshops).  Purchases may be made from sheltered workshops without prior notice or competition.  Qualified Not-for-Profit Agencies who contract with the State must comply with all other provisions of the Illinois Procurement Code.  Notice of purchases shall be posted on the Illinois Procurement Bulletin.

 

b)         Pricing Approval.  Prior to contracting with a sheltered workshop, the State Use Committee (see Section 45-35(c) of the Code) must determine that the price is not substantially more than a competitively solicited price.

 

Section 8.4545  Small Business

 

a)         Set-Aside.  The CPO may set-aside a certain portion of construction contracts for small businesses.

 

b)         Small Business List.  The CPO may develop a list, or may use a list maintained by another State agency or another CPO, of vendors that meet the criteria of small business.  As part of the prequalification process, vendors desiring to submit bids or proposals or otherwise to contract for items set aside for small businesses shall submit information as specified verifying that the vendor qualifies as a small business under this Part.  A business that fits the definition of small on the day of award or proposal opening will be considered small for the duration of the contract.  The agency shall, through its prequalification program, identify contractors who meet the criteria for small businesses.  When utilizing vendor lists for soliciting small business vendors, all vendors shall be solicited under the commodity code representing the goods or services being solicited.

 

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

 

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

 

e)         Criteria for Small Business

 

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

 

A)        A wholesale business is a small business if its annual sales for its most recently completed fiscal year do not exceed $10,000,000.

 

B)        A retail business or business selling services is a small business if its annual sales and receipts for its most recently completed fiscal year do not exceed $6,000,000.

 

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 $10,000,000.

 

E)        If a business is any combination of retailer, wholesaler or construction business, the annual sales for each component may not exceed the higher of $10,000,000 for a wholesaler, $6,000,000 for a retailer, $10,000,000 for a construction business or the amounts shown in Section 45-45 of the Code.  For example, a business that is both a retailer and wholesaler may not have total sales exceeding $16,000,000 and the retail component may not exceed $6,000,000 and the wholesale component may not exceed $10,000,000.  If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed 250.

 

2)         A small business in Illinois is defined as a company that is incorporated or organized as a domestic corporation under the Business Corporation Act of 1983 [805 ILCS 5/1.80].

 

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

 

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 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.

 

5)         Vendors certified as minority, female, veteran-owned or any other business certification, that also meet the criteria for a small business, can be recognized as a small business for the purpose of set-asides. 

 

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

 

Section 8.4557  Veterans

 

It is the goal of the State to promote and encourage the continued economic development of small businesses owned and controlled by qualified veterans and that qualified service-disabled veteran-owned small businesses (SDVOSB) and veteran-owned small businesses (VOSB) participate in the State's procurement process as both prime contractors and subcontractors.  Not less than 3% of the total dollar amount of State contracts, as defined by the Director of Central Management Services, shall be established as the goal to be awarded to SDVOSB and VOSB. [30 ILCS 500/45-57].  CDB shall award contracts in compliance with the goal to award contracts to SDVOSB and VOSB businesses (see 44 Ill. Adm. Code 20).

 

Section 8.4570  Contracting with Businesses Owned and Controlled by Minorities, Females and  Persons with Disabilities

 

a)         Procurements made under the Code are subject to the requirements of the BEMFD Act.

 

b)         Responsiveness of bidders or offeror determinations related to 30 ILCS 575 are subject to the review and approval of the CDB Good Faith Effort Committee for the purpose of ensuring that the provisions of the Act are consistently applied.

 

c)         CDB shall develop Rules for compliance with 30 ILCS 575 to include:

 

1)         Goal Setting;

 

2)         Vendor Assistance;

 

3)         Performance of Commercially Useful Functions.

 

Section 8.4590  Notice of Preferences

 

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

 

Section 8.4599  Domestic Products

 

a)         This Section applies to the procurement of "procured products" ("assembled articles, materials or supplies" [30 ILCS 517/5]) incorporated into construction projects unless:

 

1)        the procurement is exempt from competitive solicitation requirements as in the case of a small, emergency or sole economically feasible source situation;

 

2)        CDB determines that a specific project is too complex for the 5 major construction building trades to identify the numerous individually procured products required for the project;

 

3)        CDB determines that procured products required for a specific project are too numerous or complex to be able to efficiently assess the sites where manufactured; or

 

4)        One of the exemptions of Section 10 of the Procurement of Domestic Products Act applies.

 

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.  The preference shall be as follows:

 

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

 

2)         In the event of a tie bid, 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 bid price that has made that certification shall be evaluated as though its price was 2% lower, subject to a maximum dollar value of $50,000.  Determinations of price shall reflect consideration of life cycle costs, including maintenance and repair costs.

 

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

 

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

 

d)         CDB shall include in the procurement file documentation showing the application of any preference given and any determination that the supplies involved in the purchase were not subject to the Procurement of Domestic Products Act.

SUBPART P: ETHICS

 

Section 8.5002  Continuing Disclosure; False Certification

 

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

 

b)        The CPO may prescribe a standard format and procedure for annual recertification and may include annual certifications as part of a registration or prequalification process.

 

c)         Should a vendor be unable to certify that it continues to meet requirements of Section 50 of the Code, the relevant information detailing any changes shall be submitted by the vendor or the agency to the SPO for review and disposition.

 

Section 8.5005  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 or branch of the federal government in that officer's or employee's official capacity; or

 

2)         Has made an admission of guilt of the conduct described in subsection (a)(1) as a matter of record, but has not been prosecuted for that conduct.

 

b)         Businesses 

No business shall be barred from contracting with any unit of State or local government, or subcontracting under such a contract, as a result of a conviction described in subsection (a)(1) of any employee or agent of the business if the employee or agent is no longer employed by the business and:

 

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 which is a signatory to the contract to which the subcontract relates, and that entity finds that the commission of the offense was not authorized, requested, commanded or performed by a director, officer or high managerial agent on behalf of the business, as provided in Section 5-4(a)(2) of the Criminal Code of 2012 [720 ILCS 5-4(a)(2)].

 

c)         Conduct on Behalf of Business 

For purposes of this Section, when an official, agent or employee of a business commits the acts contained in subsection (a)(1) on behalf of the business and in accordance with the direction or authorization of a responsible official of the business, the business shall be chargeable, for purposes of this Section, with that conduct.

 

d)         Certification 

Every bid submitted to and contract executed by the State and every subcontract subject to Section 20-120 of this Code shall contain a certification by the contractor or the subcontractor, respectively, that the contractor or subcontractor is not barred from being awarded a contract or subcontract under this Section, and acknowledges that the CPO may declare the related contract void if any certifications required by this Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontractor upon the State's request after a finding that the subcontractor's certification was false.  A contractor or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony. [30 ILCS 500/50.5]

 

Section 8.5010  Felons

 

a)         Unless otherwise provided, no person or business convicted of a felony shall do business with the State of Illinois or any State agency, or enter into a subcontract subject to Section 120 of this code, from the date of conviction until 5 years after the date of completion of the sentence for that felony, unless no person held responsible by a prosecutorial office for the facts upon which the conviction was based continues to have any involvement with the business.

 

b)         Every bid submitted to and contract executed by the State and every subcontract subject to this Part shall contain a certification by the bidder or contractor or subcontractor, respectively, that the bidder, contractor or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges the CPO may declare the related contract void if any of the certifications required by this Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-10]

 

Section 8.5011  Debt Delinquency

 

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

 

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

 

Section 8.5012  Collection and Remittance of Illinois Use Tax

 

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

 

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

 

Section 8.5013  Conflicts of Interest Prohibited by the Code

 

These conflicts apply to the direct interest of specified State employee or officeholder.

 

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

 

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 or appointed to an office of Illinois State government.  This Section does not apply to those elected to local government offices, including school districts, nor does it apply to those elected to Federal offices in this State.

 

e)         Additional exemptions to the application of this Part are listed in Section 50-13(f) of the Code.

 

Section 8.5014  Environmental Protection Act Violations

 

a)         Unless otherwise provided, no person or business found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act shall do business with the State of Illinois or any State agency or enter into a subcontract from the date of the order containing the finding of violation until 5 years after that date, unless the person or business can show that no person involved with the violation continues to have any involvement with the business.  [30 ILCS 500/50-14(a)]

 

b)         A person or business otherwise barred from doing business with the State of Illinois and any State agency or any subcontractors under the Code by subsection (a) may be allowed to do business with the State of Illinois or any State agency if it is shown that there is no practicable alternative to the State to contracting with that person or business.  [30 ILCS 500/50-14(b)]

 

c)         Every bid submitted to and contract executed by the State and every subcontract subject to Section 20-120 of the Code shall contain a certification by the bidder, contractor and any subcontractor, respectively, that the bidder, contractor or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the CDB or CPO may declare the related contract void if any of the certifications completed pursuant to this subsection (c) are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor's certification was false.  [30 ILCS 500/50-14(c)]

 

Section 8.5015  Negotiations for Future Employment

 

a)         It is unlawful for any person employed in or on a continual contractual relationship with any of the offices or agencies of State government to participate in contract negotiations on behalf of that office or agency with any vendor, partnership, association or corporation with whom that person has a contract for future employment or is negotiating concerning possible future employment.  [30 ILCS 500/50-15(a)]

 

b)         An individual who performs services pursuant to a contract and who meets the requirements of an "employee" as opposed to an "independent contractor" is in a "continual contractual relationship" from the effective date of the contract until such time as the contract is terminated.

 

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.

 

Section 8.5020  Exemptions

 

If an individual finds a conflict of interest under Section 50-13 of the Code with the vendor selected for award or contract negotiations, he or she shall forward to the CPO the name of the vendor and a description of the proposed contract and of the potential conflict, and shall state why an exemption should be granted.  CDB shall determine and include documentation of the agency's position on the conflict.  The CPO shall decide whether to disapprove the contract or request a exemption from the Executive Ethics Commission in accordance with Section 50-20 of the Code.

 

Section 8.5023  Other Conflicts of Interest

 

a)         Except as otherwise specified in the Public Officer Prohibited Activities Act, no State officer shall be in any manner financially interested, directly or indirectly, in the name of any other person, association, trust or corporation in any contract or work in the making or letting of which the officer may be called upon to act or vote.

 

b)         No contract shall be awarded to a State officer or employee or to a firm, partnership, association or corporation, the owner or principal owners or major officers or primary employees of which are officers or employees of the State agency, or to members of the immediate family of an officer of the State agency, unless the contract is deemed essential to State agency operations and is approved by the CDB Executive Director and the CPO.  These approvals shall be filed with the contract and shall be made part of the procurement file.

 

c)         If CDB has its owns policies regarding procurement conflict of interest relative to its own employees, CDB must provide notice of any potential conflict of interest to the SPO along with CDB's policy.  This information may be used by the SPO when considering whether to award a contract.

 

Section 8.5030  Revolving Door Prohibition

 

a)         CPOs, SPOs, Procurement Compliance Monitors, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to CDB for which they had oversight, in an affected position for a period of at least 6 months.  The prohibition includes but is not limited to:  lobbying the procurement process; specifying, bidding, proposing bid, proposal, or contract documents; on their own behalf or on behalf of any firm, partnership, association, or corporation. This prohibition applies to all persons who terminate an affected position on or after January 1, 1999.  [30 ILCS 500/50-30]

 

b)         The CPO, in conjunction with the CDB ethics officer, shall identify in writing those designees whose job, or whose position description, is at least 51% directly related to procurement.  Activities directly related to procurement include, but are not limited to, drafting specifications, preparing solicitations, evaluating offers, negotiating contracts, administering contracts and supervising any of the foregoing.  This determination shall be communicated to the affected employees and maintained for a period of at least 2 years following the end or revocation of the designation.

 

Section 8.5035  Disclosure of Financial Interests and Potential Conflicts of Interest

 

a)         For purposes of Section 50-35(a) of the Code, an "offer from responsive bidders or offerors" means any bid or offer.  Disclosures shall be obtained when the award value exceeds $25,000 and for any subcontracts valued at more than $50,000.

 

b)         For purposes of Section 50-35(b) of the Code, "parent entity" means an entity that owns 100% of the bidding or offering entity.

 

c)         Section 50-35(b)(1) of the Code, "contractual employment of services" means any contract to provide services to the State, whether as independent contractor or employee, that is by and between the State and the named individual.

 

d)         "Distributive income" means the income of a company after payment of all expenses, including employee salaries and bonuses, and retained earnings that is distributed to those entitled to receive a share of that income.  In the case of a for-profit corporation, distributable income means dividends.  When calculating entitlement to distributable income, the entitlement shall be calculated at the end of the company's most recent fiscal year or when distributed.

 

e)         "Personal services" shall be any contract for services subject to the Code, including, by way of example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from the Code under Section 1-10(b)(4).

 

f)         "Subject to federal 10K reporting" means subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934.  "10K disclosure" means a report required under section 13 or 15(d) of the Securities Exchange Act of 1934 (15 USC 78a et seq.).

 

g)         10K Disclosures

 

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 distributive income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State.  If the financial interest or conflict of interest information requested by the State is not in the 10K, or in a document that may be submitted to the SEC in conjunction with, or in lieu of, the 10K, then that additional documentation shall be provided.

 

2)         10K disclosures are available for public review.  Any potential conflict of interest identified by the public and brought to the attention of CDB, the CPO or the SPO shall be investigated.

 

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 and shall include at least the names, addresses and dollar or proportionate share of ownership of each person identified in this Section, his or her instrument of ownership or beneficial relationship, and notice of any potential conflict of interest resulting from the current ownership or beneficial relationship of each person identified in this Section as having any of the following relationships:

 

A)        State employment, currently or in the previous 3 years, including contractual employment of services;

 

B)         State employment of spouse, father, mother, son or daughter, including contractual employment for services in the previous 2 years;

 

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 or Elections.  [30 ILCS 500/50-35(b)(1) through (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 Section 50-35(a) of the Code and who has communicated, is communicating, or may communicate with any State officer or employee concerning the bid or offer.  The disclosure under this subsection (h)(2) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful.  [30 ILCS 500/50-35(b-1)]

 

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, SPOs, their designees and executive officers so they may adequately discharge their duty to protect the State.  [30 ILCS 500/50-35(c)]  A potential conflict of interest occurs in procurement when a person who, by reason of official State position or personal or financial relationship to person with official State position, has or may have the ability to influence the award of a State contract to his or her personal benefit.

 

1)         Determination by Procurement Officer.  When an alleged conflict of interest, or violation of the Code is identified, it shall be reviewed by the CPO or his or her designee, who must determine whether the contract, subcontract, bid, offer or proposal should be awarded.  Prior to making a final determination, the potential conflict shall be submitted to PPB for review in accordance with Section 50-35(d) of the Code.  If PPB recommends to allow the contract or subcontract, the CPO or his or her designee may award the contract.  If the PPB recommends the contract, bid or offer be voided, then the CPO,  may determine to award the contract, considering whether the best interest of the State of Illinois will be served.  Upon such determination, the EEC shall hold a public hearing.  After the public hearing, the CPO may award the contract.  The CPO may, at any juncture, determine to void the contract or award if to do so is determined to be in the best interest of the State.  All written determinations and any documents relied upon or made part of any public hearing shall become a publicly available part of the procurement file.

 

2)         Requirements for Reasonable Care and Diligence.  The statutory thresholds for disclosure do not relieve the CPO, SPO or their designees from reasonable care and diligence for any contract, bid, offer or proposal.  The CPO, SPOs or their designees shall be responsible for using any reasonably known and publicly available information to discover any undisclosed potential conflict of interest and act to protect the best interest of the State of Illinois.  [30 ILCS 500/50-35(e)]

 

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 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 if he or she deems it in the best interest of the State of Illinois and shall result in debarment from future contracts, subcontracts, bids, proposals or relationships with the State for a period of not less than 2 years and not more than 10 years.  Reinstatement after 2 years and before 10 years must be reviewed and commented upon by the Governor or by an executive ethics board or commission he or she might designate.  The comment must be returned to the CPO, who must rule in writing whether and when to reinstate.  [30 ILCS 500/50-35]

 

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)]  Absent any other requirements of the Code to the contrary (see Section 50-35(i) of the Code), new disclosures are not required for contract amendments.

 

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)]

 

j)          Subcontractors

IFBs and RFPs shall include a provision to require each bidder or offeror to identify, either in its bid or proposal or within 20 days after notice of award of contract, the identity of known subcontractors that will be used in the performance of the contract, as well as the amounts expected to be paid to each subcontractor.  The vendor may be requested to provide copies of subcontracts for those subcontracts valued over $50,000, as well as disclosure forms and standard certifications, in such form as is approved by the CPO office.

 

k)         Hearing

Any hearing conducted by the CPO/SPO and required under Section 50-35 of the Code shall be conducted in accordance with Subpart T.

 

Section 8.5037  Vendor Registration, Certification and Prohibition on Political Contributions

 

a)         Introduction

Illinois statutes [10 ILCS 5/9-35 and 30 ILCS 500/20-160 and 50-37] restrict political contributions by vendors that are business entities and their affiliated entities and persons; require registration with the State Board of Elections (SBEL); require the CPO to verify that the business entity is required to register with SBEL and is in compliance with registration requirements as of the date bids or proposals are due; and require solicitation and contract certifications of the vendor relative to the requirements of these statutes.  This Section supplements requirements found in those statutes and does not excuse compliance with any of those requirements.

 

b)         General Registration Requirements

 

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 on or after January 1, 2009, 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 any other individuals who fulfill equivalent duties as the President, Chairman of the Board, or Chief Executive Officer; and

 

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 the date of the bid or offer is due and shall provide a copy of the Registration Certificate or be able to produce the Registration Certificate on that date.

 

2)         If a vendor is not registered by the date the bid or offer is due, CDB shall reject the bid or offer as non-responsive.

 

3)         Prior to award or execution of contract, the SPO, or a designee of the SPO, shall verify the vendor who meets the requirements for registration has registered with SBEL and shall obtain a copy of the Registration Certificate.

 

d)         Contracts

A copy of the Registration Certificate must be in the procurement file in relation to any contract for which a vendor is required to register as set forth in this subsection (d), unless the vendor certifies it is not required to register.

 

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 the Registration Certificate upon request and make the appropriate contract certification, if it has not already done so.  The Registration Certificate may be provided by reference to and incorporation of the vendor's prequalification by the CPO.

 

2)         CDB shall identify in the solicitation whether the contract is estimated to exceed $50,000 annually.  Vendors submitting bids or offers for master contracts estimated to exceed $50,000 annually regardless of consumption are required to register with SBEL.

 

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 maximum value of orders that may be placed pursuant to an indefinite/estimated value contract, plus all other contracts and bids/proposals, exceeds $50,000 annually. The vendor shall register with SBEL within 10 business days after orders exceed $50,000.

 

4)         For contract amendments, if the value of the amendment, by itself or in combination with the contract being renewed plus other contracts and bids/proposals exceeds $50,000 annually, the vendor must provide the Registration Certificate upon request and make the appropriate contract certification, if it has not already done so.

 

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 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)         Certification of the requirement to register with the State Board of Elections, required by 30 ILCS 20-160(a), shall be included in or added to each contract that must be filed with the State Comptroller pursuant to Section 20-80 of the Code and those written two-party contracts that need not be filed with the Comptroller.  Agencies may require written confirmation of the certification at any time.

 

e)         Voidable contracts

Every solicitation issued and contract executed by the State on or after January 2, 2009, shall contain a statement that the contract is voidable under Section 50-60 if the bidder, offeror or contractor fails to comply with Section 20-160 of the Code.

 

Section 8.5038  Lobbying Restrictions

 

a)         A person or business that is let or awarded a contract is not entitled to receive any payment, compensation or other remuneration from the State to compensate the person or business for any expenses related to travel, lodging, or meals that are paid by the person or business to any officer, agent, employee, consultant, independent contractor, director, partner, manager or shareholder.  [30 ILCS 500/50-38(a)]

 

b)         Disclosure

 

1)         Any bidder or offeror on a State contract that hires a person required to register under the Lobbyist Registration Act to assist in obtaining a contract shall:

 

A)        Disclose all costs, fees, compensation, reimbursement and other remunerations paid or to be paid to the lobbyist and the purpose and nature of the lobbying on behalf of the vendor;

 

B)        Not bill or otherwise cause the State of Illinois to pay for any of the lobbyist's costs, fees, compensation, reimbursements or other remuneration;

 

C)        Sign a verification certifying that none of the lobbyist's costs, fees, compensation, reimbursements or other remuneration were billed to the State.

 

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 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)]

 

Section 8.5039  Procurement Communication Reporting Requirement

 

a)         Reporting Requirement

Any written or oral communication received by a State employee who, by nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract or a project, shall be reported to the Procurement Policy Board in accordance with rules of the Executive Ethics Commission (see 2 Ill. Adm. Code 1620). [30 ILCS 500/50-39(a)]

 

b)         Excepted Communications

 

1)         These communications do not include the following:

 

A)        statements made by a person publicly in a public forum (however, communications made in a public forum, if made privately, must be reported);

 

B)        statements regarding matters of procedure and practice, such as format, the number of copies required, the manner of filing, and the status of a matter;

 

C)        statements made by a State employee and:

 

i)          the State employee's agency head;

 

ii)         other State employees of that agency;

 

iii)        employees of the Executive Ethics Commission; or

 

iv)        an employee of another State agency who, through the communication, is either exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the purchasing agency or the appropriate State Purchasing Officer, or exercising oversight, supervisory or management authority over the procurement in the normal course of business and as part of official responsibilities;

 

D)        unsolicited communications providing general information about products, services or industry best practices before those products or services become involved in a procurement matter;

 

E)        communications received in response to procurement solicitations, including, but not limited to, vendor responses to a:

 

i)          RFI;

 

ii)        RFP;

 

iii)       request for qualifications;

 

iv)       IFB;

 

v)        small purchase, sole source or emergency solicitation; or

 

vi)       questions and answers posted to the Illinois Procurement Bulletin to supplement the procurement action, provided that the communications are made in accordance with the instructions contained in the procurement solicitation, procedures or guidelines;

 

F)         communications that are privileged, protected or confidential under law; and

 

G)        communications that are part of a formal procurement process as set out by statute, rule or the solicitation, guidelines or procedures, including, but not limited to:

 

i)          the posting of procurement opportunities;

 

ii)         the process for approving a procurement business case or its equivalent;

 

iii)        fiscal approval;

 

iv)        submission of bids;

 

v)         the finalization of contract terms and conditions with an awardee or apparent awardee; and

 

vi)        any other similar formal procurement process. [30 ILCS 500/50-39(a)]

 

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. [30 ILCS 500/50-39(a)]

 

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)]  For purposes of this Section:

 

1)         "Active Procurement Matter" − a procurement process beginning with requisition or determination of need by an agency and continuing through the publication of an award notice or other completion of a final procurement action, the notice or other completion of a final procurement action, the resolution of any protests, and the expiration of any protest or PPB review period, if applicable.   "Active procurement matter" also includes communications  relating to change orders, renewals or extensions.

 

2)         "Material Information" − information that a reasonable  person would deem important in determining his or her course of action and pertains to significant issues, including, but not limited to, price, quantity and terms of payment or performance.

 

3)         "Material Argument" – a communication that a reasonable person would believe was made for the purpose of influencing a decision relating to a procurement matter.  "Material argument" does not include general information about products, services or industry best practices or a response to a communication initiated by an employee of the State for the purposes of providing information to evaluate new products, trends, services or technologies.

 

Section 8.5060  Prohibited Bidders and Contractors

 

a)         Unless otherwise provided, no business shall bid or enter into a contract or subcontract if the business or any officer, director, partner, or other managerial agent of the business has been convicted of a felony under the Sarbanes-Oxley Act of 2002 (PL 107-204) or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 for a period of 5 years from the date of conviction.

 

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 contracts with a State agency to write specifications for a particular procurement may not submit a bid or proposal or receive a contract or subcontract for that procurement.

 

d)         Bids determined to be non-responsive in accordance with this Section are subject to the review and approval of the CPO.

SUBPART Q: COOPERATIVE PURCHASING

 

Section 8.5400  General

 

All cooperative/joint procurement activities and contracts must be approved by the CPO.

 

Section 8.5420  Governmental Joint Purchasing Act Contracts

 

State and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to use each others' procurement contracts.  This authority is governed by this Subpart and the Governmental Joint Purchasing Act.

 

Section 8.5440  Non-Governmental Joint Purchasing

 

a)         The CPO may authorize one or more State agencies to enter into joint procurement agreements with non-governmental entities, including, without limitation, consortiums of government entities, not-for-profit entities and commercial entities.

 

b)         If the authorized State agency acts as the lead agency, the procurement shall be conducted in accordance with the Code and this Part.

 

c)         If the authorized State agency acts as a participant in an agreement in which a non-governmental entity acts as lead agency, the State agency shall provide supplementary advertising in the Bulletin, as required by the Code, and shall include in the solicitation by the lead agency Code requirements or, if not possible, these requirements shall be included in the resulting contract.

 

Section 8.5460  No Agency Relationship

 

In any cooperative/joint purchasing situation, each participant must issue its own purchase order, accept its own deliveries and make its own payments.  No State agency shall have any obligation to the vendor for payment of orders placed by other participants.

SUBPART R: SUSPENSION AND DEBARMENT

 

Section 8.5560  Suspension and Debarment

 

a)         This Part applies to all debarments or suspensions of vendors from consideration for award of contracts under the Code.  For the purposes of this Part, all references to "vendors" includes subcontractors.  This Part provides for general provisions for suspension and debarment recommendation by CDB and approval by the CPO as authorized by Sections 20-75 and 50-65 of the Code and under the jurisdiction of the CPO.  A vendor may be suspended or debarred by the CPO due to acts or omissions that indicate that the vendor lacks integrity and honesty in the conduct of business or the performance of contracts.  Acts or omissions that indicate the lack of business integrity and honesty include, but are not limited to:

 

1)         fraud, bribery, embezzlement, theft, collusion, conspiracy, anti-competitive activity or other misconduct and offenses prohibited by law, whether or not the misconduct or offense is in connection with a CDB contract or subcontract;

 

2)         making a material false statement in any procurement documents, including the application for prequalification or any forms or affidavits required as part of the procurement or prequalification process;

 

3)         materially violating any rule or procurement procedure or making a material false statement in connection with any rules or procurement procedures of CDB;

 

4)         making a material false statement, representation, claim or report respecting the character, quality, quantity or cost of any work performed or materials furnished in connection with a contract or subcontract administered or supervised by CDB;

 

5)         doing business with a suspended contractor or subcontractor in connection with a contract or subcontract of CDB;

 

6)         being debarred or suspended by another agency of this State or the United States; or

 

7)         violation of the Code or this Part or failure to conform to specifications or terms of delivery;

 

b)         CDB may recommend suspension or debarment of a vendor from doing business with CDB, or with respect to certain types of supplies or services.  A suspension may be approved by the CPO upon a showing that adequate evidence supports a finding that the vendor has engaged in conduct proscribed by subsection (a).

 

c)         When the CPO agrees cause exists for the suspension or debarment, a notice of suspension or debarment, including a copy of that determination, shall be sent to the vendor by CDB.  Notice shall be furnished in writing by personal service or by certified or registered mail.  Bids or proposals will not be accepted from the vendor and, if received, will not be considered during the period of suspension or debarment.

 

d)         Upon receipt of notice of suspension or debarment, the vendor may submit a written request for a hearing.  The hearing will be conducted by a Hearing Officer who will hear the evidence presented and make a written recommendation to the CPO.

 

e)         The CPO shall issue the final written determination that results from any hearing regarding a suspension or debarment.

 

f)         The CPO may suspend a vendor for a period of time commensurate with the seriousness of the offense, but for no more than 10 years.  The suspension will be effective 7 calendar days after delivery of notice to the vendor of intent to suspend or debar, unless a request for hearing is filed.  If a request for hearing is filed, suspension shall not become effective until the CPO issues a final written determination.  In cases of emergency, suspension shall be effective immediately, subject to scheduling a hearing within 30 days.

 

g)         The CPO may debar a vendor.  Debarment is the permanent suspension of a vendor from doing business with the State.  A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law.  Bids or proposals received from the debarred vendor or proposing the use of a debarred subcontractor will not be considered.  The debarment will be effective 7 calendar days after receipt of notice, unless a request for hearing is filed.  If a request for hearing is filed, the debarment shall not become effective until the CPO makes a final written determination.

 

h)         In the event of a suspension or debarment, the vendor's prequalification shall be rescinded.

 

i)          The CPO shall determine, after consultation with CDB, whether to void any existing or pending contracts as a result of a suspension or debarment.

 

j)          The CPO shall post the record of suspensions and debarments on his or her web page and on the Bulletin.

 

k)         Suspension or debarment hearings shall be conducted in accordance with Subpart T.

 

l)          CPO shall maintain all records related to this Part, including a master list of all suspensions and debarments.  The master list shall retain information concerning suspensions and debarments as public records.  These records will be maintained for a period of at least 3 years following the end of the suspension or debarment.  This public information may be considered in determining responsibility.

SUBPART S: VIOLATION OF STATUTE OR RULE

 

Section 8.5620  Violation of Statute or Rule

 

a)         Determination that Solicitation or Award Violates Statute or Rule

If CDB determines or suspects that the solicitation or proposed award is in violation of statute or rule, it shall report the circumstances to the CPO or SPO.  If the CPO or the SPO finds that the solicitation or proposed award is in violation of statute or rule, he or she shall report the circumstances to CDB and the CPO or SPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if the correction may be legally accomplished.

 

b)         Determination that Contract Violates the Code or this Part

 

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 or may be ratified or affirmed, provided the CPO determines that ratification is in the best interest of the State.  If the contract is ratified and affirmed, it shall be without prejudice to the State's right to any appropriate damages.

 

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 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 learns from an annual certification or otherwise determines that the contractor or subcontractor no longer qualifies to enter into State contracts, the CPO may declare the contract void if it determines that voiding the contract is in the best interest of the State.  If the voiding is the result of an action taken by a subcontractor, the contract shall not be void as long as the contractor terminates the subcontract.

 

c)         Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the State agency shall endeavor to return those supplies delivered under the contract that have not been used or distributed.  No further work shall be performed under the contract.  Resolution of any outstanding invoices related to the contract are subject to approval by the CPO.

SUBPART T: HEARING PROCEDURES

 

Section 8.5700  General

 

Any hearing conducted by the CPO office, as required by the Code or offered in this Part, shall be conducted in accordance with the procedures within this Subpart.

 

Section 8.5710  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.

 

Section 8.5720  Hearing Officers

 

a)         The CPO may appoint one or more Hearing Officers to conduct the hearing.  If more than one Hearing Officer is assigned to conduct a hearing, one shall be designated as the Chief Hearing Officer.

 

b)         The Hearing Officer may require that the SPO or authorized representative of CDB attend a hearing or be part of the hearing.

 

c)         The Hearing Officer will hear and consider information presented by interested persons and make a recommendation to the CPO regarding the validity of the determination that is the subject matter of the hearing.

 

d)         The Hearing Officer shall be responsible for the orderly conduct of the hearing by exercising discretion in:

 

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 schedules of the parties, the impact of delay upon the State and other parties, the hardship to witnesses or the general public, travel and logistical considerations and any other matters that would affect public participation in the hearing.

 

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.

 

Section 8.5730  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 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.

 

Section 8.5740  Written Comments and Oral Testimony

 

Interested parties wishing to comment may do so in writing alone, may testify in person and may submit written comments reflecting the oral testimony.

 

a)         Written Comments

 

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 may register with the Hearing Officer by the hearing registration deadline shown in the Bulletin notice to ensure an opportunity to testify.  The registration period begins on the date the notice is posted to the Bulletin.  Registration information will be stated in the notice.  Those who do not register by the hearing registration deadline shown in the Bulletin notice will be heard as time permits and may submit written comments.  The Hearing Officer has discretion to limit testimony for the efficiency of the hearing.

 

2)         Written Summary of Testimony Requested

When extensive or complex oral testimony is reasonably expected, a written summary reflecting proposed oral testimony can be requested by the hearing registration deadline shown in the Bulletin notice to allow the Hearing Officer time to prepare for the hearing.  Failure to provide the written summary may result in precluding the testimony from being presented or considered.  The Hearing Officer may request a written copy of the oral testimony.

 

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 interested party shall have a reasonable period of time to present his or her position based on the complexity of the issue and the press of other business.

 

c)         Sole Source and Emergency Contract Extensions − Supplemental Provisions

 

1)         The notice, including attachments, as shown in the Bulletin represents the position of CDB and the initial position of the CPO.  The Hearing Officer shall have the notice placed into the record.  A copy of the notice will be posted outside the hearing room.

 

2)         The SPO and a representative of CDB shall attend the hearing if any person registers in advance to testify to the sole source or emergency contract extension determination.  Attendance may be by video or audio.  The SPO and a representative of CDB or the user agency representative shall respond to questions of the Hearing Officer and shall be available for consultation after adjournment of the hearing.

 

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 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

 

1)         A party who receives notice of suspension or debarment may request a hearing to protest the suspension or debarment action.  The hearing will be conducted in accordance with this Section and the following additional provisions shall apply.

 

A)        The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative.  The Hearing Officer is not required to respond to substantive questions at the hearing or make commitments regarding the content of his or her recommendation.

 

B)        Both the affected State agency and the vendor affected by a suspension of debarment may, at the discretion of the Hearing Officer, bring in witnesses to present testimony or other evidence regarding the facts or circumstances that led to the determination to suspend or debar.

 

C)        In addition to responding to questions of the Hearing Officer, the witnesses shall respond to questions by the affected vendor if, at the discretion of the Hearing Officer, the questions are allowed.

 

i)          The Hearing Officer may allow questions when the subject matter of the question is relevant and the questioning will not unnecessarily delay the proceedings.

 

ii)         The Hearing Officer may deny questions when the subject matter seeks only to unnecessarily embarrass the witness or delay the proceedings.

 

e)         Recommendation

After conclusion of a hearing, the Hearing Officer shall review CDB's position, any information obtained from public comment (written or oral), the applicable Sections of the Procurement Code, other laws and associated rules and written policies and other information deemed relevant.

 

f)         Decision of the CPO

 

1)         The CPO shall, after considering the Hearing Officer's recommendation, make a decision in writing (which may be electronic) to uphold or overturn, in whole or in part, the original determination.

 

2)         The CPO may request additional information from the Hearing Officer, or any other party, including supplemental comments or testimony from the interested parties, prior to making a decision.

 

3)         The CPO may adopt the recommendation, in whole or in part, or may reject the recommendation, or may write a separate decision.

 

g)         Notice of Decision

The decision of the CPO shall be posted to the Bulletin and issued in writing to the interested parties.

 

h)         Maintenance of Records

A copy of the public notices, any documents presented, any written comments, the recommendation of the Hearing Officer, and any decision of the CPO shall be maintained in the procurement file.  Any transcript or recording of a public hearing shall be available, pursuant to the Freedom of Information Act, upon request.

SUBPART U: MISCELLANEOUS PROVISIONS OF GENERAL APPLICABILITY

 

Section 8.7000  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.

 

Section 8.7010  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 unconsumed property to the State.

 

Section 8.7015  Inspections

 

a)         Inspection of Plant or Site

The CPO or a designee may enter a vendor's or subcontractor's plant or place of business, subject to any implementing contract provisions, to:

 

1)         inspect supplies or services for acceptance by the State agency;

 

2)         audit the books and records of the 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)         Inspection of Construction Projects

On-site inspection of construction shall be performed in accordance with this Section and the terms of the contract.

 

f)         Any confidential information gathered during an inspection can be identified as such in writing and protected from disclosure as allowed.

SUBPART V: PREQUALIFICATION

 

Section 8.8001  Purpose

 

CDB contracts and agreements shall be awarded only to responsible A/E, contractors, construction managers and design-build entities comprised of vendors and are subject to the authority of the CPO.  Prospective A/Es, contractors, construction managers and individual vendors that constitute design-build entities must affirmatively demonstrate responsibility, including, when necessary, the responsibility of proposed subcontractors and suppliers.  In the absence of information clearly indicating that prospective A/Es, and contractors are responsible, CDB shall make a determination of non-responsibility.  Only responsible A/Es, contractors, construction managers and individual vendors that constitute design-build entities shall be prequalified, and only those prequalified shall be permitted to bid on CDB projects.  A determination of non-responsibility may be made at any time prior to or after award of a contract.

 

Section 8.8005 Policy

 

a)         As a general proposition, except in instances of statutory exceptions, CDB shall award contracts in conformance with the Code.  Construction contracts will be awarded to the lowest responsible and responsive bidder.  However, award of a contract based on the lowest price alone can be false economy if there is subsequent default, late deliveries or other unsatisfactory performance resulting in additional contractual or administrative costs.  While it is important that Government purchases be made at the lowest price, the best interest of the State do not always require an award solely based on price.

 

b)         Construction management services contracts will be awarded in compliance with Article 33 of the Code.  A/E contracts will be awarded based on the requirements of the QBS Act.  Design-build contracts will be awarded based on the Design-Build Procurement Act.

 

Section 8.8015 Prequalification Required

 

Vendors shall be prequalified.  For design-build entities consisting of more than one vendor, each vendor shall be prequalified by CDB.  Vendors must be prequalified at least one day prior to any submittal of bids or offers for a specific project and prior to entering a contractual relationship with CDB.  Prequalification shall be based upon a determination of responsibility from, but not limited to, the information supplied on a properly completed prequalification application. In special circumstances, including but not limited to small purchases, sole source and emergency procurements, CDB can award a contract to a non-prequalified vendor with approval of the SPO.

 

Section 8.8017 Special Projects

 

a)         When CDB determines a construction project is so large or specialized that a special prequalification and responsibility determination is appropriate, CDB may set appropriate standards of acceptability different from those set out in this Part.  Other provisions of this Part shall remain applicable.

 

b)         Special Prequalification Provisions

 

1)         A public notice will be posted on the CDB Procurement Bulletin and may be published in the CPO-GS Procurement Bulletin and/or in the official State newspaper or may otherwise be made available in print describing the project and any special prequalification requirements.

 

2)         The notice will be published at least 30 days before the date the special prequalification application or the statement of qualifications is due.

 

3)         Prequalification standards may be revised to be more closely related to the needs or environment of the special project (e.g., required vendor and or personnel experience may be limited to a particular size of project, or to experience in a particular environment such as correctional facility work).

 

Section 8.8020 Confidentiality

 

Documents relating to responsibility determinations shall be maintained by CDB in a separate file and shall remain confidential as records pertaining to occupational registration, except that they shall be subject to complete disclosure to the vendor or design-build entity to which they relate and to units of federal, State or local government, including but not limited to, law enforcement agencies.  Nothing in this Section shall be construed to mean that the name of any person or organization filing a complaint or providing information shall be disclosed when the complaint or information is used as the basis for further inquiry into the facts alleged.  CDB or the CPO may release to anyone the vendor's prequalification status with CDB.  Notwithstanding the foregoing, neither the Performance Evaluations nor the vendor's written responses to them shall be made available to any other person or vendor, except as authorized by Section 7(1)(b)(iii) of the Freedom of Information Act.

 

Section 8.8025 Sources for Determining Responsibility

 

As part of the prequalification process, CDB will make a responsibility determination in accordance with the standards of responsibility specified in Section 8.2046.  CDB may utilize information obtained from one or more of the sources listed in this Section.  In evaluating the information, greater consideration shall be given to the most recent projects and projects with CDB.

 

a)         Prequalification and Renewal Application Forms

 

1)         New applications shall, at a minimum, require:

 

A)        Completed application form.

 

B)        The name of each key person and that person's respective ownership.

 

D)        Relevant work experience.

 

E)        Evidence of any required bonding capacity meeting CDB criteria.

 

F)         Adherence to all appropriate statutory and regulatory requirements, including, but not limited to, those of DFPR, SOS and DHR.

 

G)        Satisfactory work history and references. References obtained may be verified and documented by the following methods:

 

i)          Telephone reference checks.

 

ii)         Reference questionnaire.

 

H)        The applicant's e-mail address and phone and fax numbers.

 

2)         Renewal applications shall, at a minimum, require:

 

A)        The information set out in subsection (a)(1).

 

B)        Adherence to all applicable rules and resolutions.

 

C)        Satisfactory CDB work and performance history, which may be documented through evaluations prepared on both current and past CDB projects by the following:

 

i)          CDB staff.

 

ii)         Architects/engineers and consultants.

 

iii)        Using agencies.

 

iv)        Other contractors, subcontractors and suppliers.

 

3)         Application Updates

Vendors shall have an affirmative duty to update significant changes to information within 10 days after occurrence.  Failure to disclose as required may lead to action on prequalification.  (See Section 8.8055(c).)  Significant changes include, but are not limited to:

 

A)        Changes in federal employee identification number, busines ownership, or corporate structure, such as sole owners and partnerships;

 

B)        Change of name;

 

C)        Change of address;

 

D)        Change or loss of approved project personnel;

 

E)        Change or initiation of hearing in licensure or registration status with the Department of Financial and Professional Regulation;

 

F)         Change in minority/female owned vendor status;

 

G)        Loss of SOS "goodstanding" status;

 

H)        Suspension or debarment by another governmental agency;

 

I)         Decrease by more than 25% in bonding capacity or filing of bankruptcy;

 

J)         Filing of formal criminal charges against a vendor or its officers, owners or employees;

 

K)        Contract terminations.

 

b)         Other Government Entities

CDB may conduct history reference checks by contacting federal, State or local governmental entities.

 

c)         Other Sources

CDB may conduct reference checks or gather relevant information from any other source in order to determine responsibility. Acceptable sources may include, but are not limited to:

 

1)         Surety/bonding companies;

 

2)         Financial institutions;

 

3)         Periodicals;

 

4)         Newspapers;

 

5)         Court records;

 

6)         Dun and Bradstreet reports;

 

7)         Audited financial statements;

 

8)         Any type of public record.

 

d)         Previous Employment History

For any newly organized vendor or a vendor with a limited work history, CDB may conduct individual performance reference checks on any or all personnel.

 

e)         Satisfactory CDB Performance History

 

1)         CDB may review documentation of current and past work and performance history, including adherence to CDB's rules, resolutions and procedures.  This documentation includes, but is not limited to, performance evaluations prepared by CDB, user agencies or contractors.

 

2)         CDB shall evaluate the performance of each vendor and design-build entity upon completion of a contract.  Evaluations shall be made available to the vendor and the vendor may submit a written response, with the evaluation and response retained solely by CDB.  The evaluation and response shall not be made available to any other person or vendor and is exempt from disclosure under the Freedom of Information Act.  The evaluation shall be based on the terms identified in the construction manager's contract.

 

f)         Additional Information

CDB may request additional information at any time.

 

Section 8.8030  Licensing and Registration Actions

 

a)                  Prequalified vendors and design-build entities shall notify CDB in writing within 10 working days when the Department of Financial and Professional Regulation or any other State entity initiates proceedings to refuse to renew or to suspend or revoke a registration, license, certification or prequalification status of any individual or vendor, or to impose any other disciplinary sanction.

 

b)                  Upon notification, prequalification will be reviewed and appropriate action taken under Subpart R.  In addition, if it is found that notice was not provided as required, CDB may take action under Subpart R.

 

Section 8.8035  Trade Codes and Profile Codes

 

a)         Vendors shall indicate on the application form the specific trade or profile codes within the area of practice in which the vendor has specific areas of knowledge, expertise or experience.  The applicant may indicate only those codes consistent with any licensing requirements.

 

b)         This information may be used by CDB in the selection of vendors for projects.  It does not relieve the vendor from providing the same or additional information in the statement of qualifications submitted for a specific project.  CDB may request additional information during the prequalification process to verify that the vendor possesses the required knowledge, expertise or experience to be considered for work in any code.  CDB may deny prequalification in a particular code during the prequalification process if the vendor fails to demonstrate its knowledge, expertise or experience to CDB's satisfaction.

 

c)         Demonstration of knowledge, expertise or experience in a code may be required to be supported by licenses or certification issued by governmental agencies such as the Department of Public Health, Illinois Historic Preservation Agency, etc.

 

d)         CDB's decisions regarding the types of codes granted shall not be subject to hearing procedures.

 

Section 8.8040  Prequalification by Office Locations

 

a)                  Vendors and design-build entities shall list all office locations on the prequalification application for which it seeks prequalification.  These office locations may be business subsidiaries, divisions, branches, etc.  CDB reserves the right to evaluate each office based on the criteria set forth in this Part.  Any offices not listed on applications shall not be deemed prequalified.

 

b)                  Prequalification shall not apply to any other business location or entity solely because of an ownership relationship.

 

Section 8.8045  Processing of Prequalification and Responsibility and Renewal Applications

 

a)         New bidders and offerors and bidder and offerors nearing the prequalification expiration date must complete a prequalification and responsibility application, including the Financial Disclosure and Potential Conflicts of Interest forms required under Section 50-35 of the Code.

 

b)         Processing of prequalification and responsibility applications and renewals by CDB may require up to 45 days when the application information is complete and satisfactory and references are responsive.

 

c)         Applications for renewal will be sent approximately 60 days before the expiration of current prequalification and are available electronically on CDB's internet site at www.cdb.state.il.us.  Vendors who do not receive an application are responsible for obtaining one at least 45 days prior to expiration.  Vendors will be notified when information is incomplete or unsatisfactory.

 

d)         Unless otherwise specified in writing by CDB, the term of prequalification shall be three years for contractors and 2 years for A/Es and construction managers.  A shorter term of prequalification can be granted.  When prequalification is granted, the vendor will be notified in writing of the expiration date, which will also be entered on CDB's electronic program.  CDB may grant a shorter term of prequalification by agreement with the vendor when a determination is made that a shorter period is justified.  CDB may, in its discretion, grant a longer period of prequalification when deemed appropriate in light of recent and relevant satisfactory project performance.  Updated or new information, including the term of prequalification, will be entered on CDB's electronic program weekly.  The electronic program will be capable of, among other things, sorting contractors by trade to produce lists of vendors in various trades.  At the beginning of each month, a list of vendors whose prequalification expires in approximately 60 days will be generated.

 

e)         Applications may be sent to CDB electronically.

 

f)         CDB shall review and evaluate each application received, which may include one or more of the following actions:

 

1)         Reviewing to determine whether the application is filled out in accordance with the instructions provided and is accurate and complete.

 

2)         Contacting references or any other possible sources of pertinent information.

 

3)         Requesting additional information from the applicant.

 

4)         Reviewing CDB contractor performance evaluations.

 

5)         Reviewing Financial Disclosures and Potential Conflicts of Interest and State Board of Elections Registration.

 

6)         Meeting with the applicant at the request of CDB or the applicant.

 

g)         CDB shall deny prequalification to any vendor that has not affirmatively demonstrated its responsibility.  CDB's determination of responsibility for prequalification shall be final.

SUBPART W: SUSPENSION, DEBARMENT, MODIFICATION OF ABILITY TO BID, AND CONDITIONAL PREQUALIFICATION

 

Section 8.8050 Actions Affecting Prequalification

 

At any time, the CPO may consider whether action should be taken concerning prequalification.  Actions that may be taken include one or more of the following:

 

a)         Interim or Emergency Suspension or Modification

The CPO may summarily suspend or modify a vendor's prequalification, [20 ILCS 3105/16].  A hearing, if requested by the vendor, shall be held within 30 days.

 

b)         Debarment

The CPO may debar a vendor to exclude it from bidding for CDB contracts as authorized in this Part or by statute.  The period of debarment shall be not less than 5 years and may be permanent when warranted or as authorized by law.  The debarment will be effective 7 calendar days after receipt of notice unless a request for hearing is filed.  If a request for hearing is filed, suspension shall not become effective until the CPO makes a final written determination.

 

c)         Modification of Ability to Submit a Bid or Offer

The CPO may modify or limit a prequalification as appropriate, including, but not limited to, one or more of the following:

 

1)         Limiting the dollar amount or project size for which a bid or offer can be submitted for a specified period of time, or until a current contract is substantially or fully complete.

 

2)         Limiting the number of CDB contracts a vendor may enter into for a specified period of time, or until a current contract is substantially or fully complete.

 

3)         Limiting the aggregate dollar amount of contracts the vendor may enter into, considering both public and private contracts.

 

4)         Imposing limits set forth in this subsection (c) pending performance on the vendor's next CDB contracts, in instances in which the vendor has no current CDB contracts.

 

d)         Conditional Prequalification

The CPO may condition prequalification (which may be otherwise limited) on the vendor's successful utilization of a management plan, evaluations, conferences or other methods designed to achieve satisfactory performance or compliance with contract requirements.

 

e)         Suspension

The CPO may suspend or disqualify a vendor temporarily from contracting with CDB, for a period of time up to 5 years.  The contractor vendor's failure to timely pursue administrative action, as provided by this Part, shall constitute consent of the vendor to the CPO's action.  The suspension will be effective 7 calendar days after receipt of notice unless a request for hearing is filed.  If a request for hearing is filed, suspension shall not become effective until the CPO makes a final written determination.

 

Section 8.8055 Causes for Suspension, Debarment, Modification of Ability to Bid or Offer, or Conditional Prequalification

 

The CPO may determine a vendor is not responsible and suspend, debar or otherwise modify or issue a conditional prequalification based upon one or more of the following:

 

a)         Failure to satisfactorily perform work on CDB contracts, private contracts, or other governmental contracts.

 

b)         Breach of the terms of a CDB contracts, private contract, or other governmental contract.

 

c)         Making false or misleading statements, or failing to disclose or update significant information in connection with CDB procedures or documents, including but not limited to the prequalification application.

 

d)         Violation of civil or criminal federal or State statutes or administrative rules and regulations.  In the case of criminal violations, indictment or filing of formal charges by information (complaint) shall constitute adequate evidence for a determination of non-responsibility.

 

e)         Financial instability, which may be evidenced by bankruptcy, failure to timely pay subcontractors, difficulty in obtaining acceptable bonding, attempts to assign contract proceeds, or other indications of serious business management deficiencies.

 

f)         Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards.

 

g)         Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or conduct indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a vendor, construction manager or design-build entity.

 

h)         Suspension, debarment, or limits on bidding or offering on contracts by any other CPO or other governmental body.

 

i)                   Failure to be properly licensed or registered with the Department of Financial and Professional Regulation (DFPR) or any other State licensing, certification or registration entity, being the subject of disciplinary sanctions by such an entity, or the subject of initiation of proceedings by such an entity in order to refuse to renew, suspend or revoke the registration or license, or to impose any other disciplinary sanction.

 

j)          Excessive requests for bid withdrawals on CDB projects.

 

k)         Any other cause of so serious or compelling a nature that it affects the responsibility of a contractor.

 

l)          For Design-Build Entities

Any action the CPO or CDB takes with regard to suspension, debarment, modification of prequalification, or conditional prequalification of a vendor in regard to its actions as a design-build entity or as a design consultant or subcontractor to a design-build entity may also apply to its prequalification to do other (non-design-build) work with CDB, unless CDB specifically restricts its action to apply to the entity's prequalification to participate in design-build projects, in accordance with Section 8.8070.

 

Section 8.8057 Failure to Satisfactorily Perform Work on, or Breach of the Terms of, CDB Contracts, Private Contracts or Other Governmental Contracts

 

CDB may request the CPO take action upon prequalification for the vendor's failure to satisfactorily perform work on, or breach of the terms of, CDB contracts, private contracts or other governmental contracts, such as, but not limited to, one or more of the following:

 

a)         For Contractors:

 

1)         Failure to timely submit proper post-award documents, such as, but not limited to, bonds, certificates of insurance and MBE/FBE subcontractor/supplier certifications.

 

2)         Failure to attend or to be properly prepared for pre-construction meetings, pay/progress meetings, or other required meetings set by the project A/E, CDB or the coordinating contractor.

 

3)         Failure to timely provide schedule submittals or shop drawings.

 

4)         Failure to meet the project schedule for any reason reasonably within the control of the contractor.

 

5)         Failure to provide an acceptable quality of supervision.

 

6)         Failure to provide a supervisor authorized to make timely field decisions on behalf of the vendor.

 

7)         Failure to provide sufficient manpower.

 

8)         Failure to timely provide acceptable quality equipment, labor, materials, installation, subcontractors or suppliers, including the failure to provide licensed personnel when necessary.

 

9)         Failure to keep updated as-builts in the field.

 

10)         Failure to follow directives provided by the project A/E or CDB within the scope of the contract documents.

 

11)        Failure to cooperate with other parties to the project to timely resolve project problems that arise.

 

12)        Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards.

 

13)        Failure to provide timely and appropriate pay request documents, including, but not limited to, the Contractor's Schedule of Values form (Development), Contractor's Affidavit and Sworn Statement form (CASS), and lien waivers.

 

14)        Failure to timely submit Requests for Proposals and Change Order documents (RFP/CO), including, but not limited to, adequate documentation of actual direct costs and pricing within conventional industry parameters for public contracts.

 

15)        Failure to timely complete punch list items or contract close-out documents.

 

16)        Failure to demonstrate good faith efforts to meet Fair Employment Practices (FEP) requirements and MBE/FBE goals.

 

b)         For A/Es, Construction Management Companies and Design-Build Entities:

 

1)                  Failure to timely submit post-award documents, such as, but not limited to, bonds, certificates of insurance and MBE/FBE certifications.

 

2)                  Failure to timely submit required documents and drawings, including record drawings, according to the project schedule, causing a delay in the commencement, completion or close out of a project.

 

3)         Failure to adequately or timely respond to technical review comments and directions.

 

4)         Failure to adhere to contractual document requirements.

 

5)         Failure to adequately or timely notify CDB of project problems or failure to cooperate with other parties to the project to timely resolve problems.

 

6)         Failure to timely or adequately resolve design issues.

 

7)         Failure to timely or adequately submit budget and estimating documents.

 

8)         Failure to meet quality standards of the applicable profession or required codes and standards for a particular type of construction.

 

9)         Failure to provide proper field administration and observer services.

 

10)         Failure to provide proper personnel or proper and timely responses to requests for information in the field.

 

11)         Failure to provide timely and adequate record drawings.

 

12)         Failure to meet contractual design schedule dates.

 

13)         Failure to timely process change orders and contractor pay requests.

 

14)         Failure to follow directives from CDB within the scope of the contract documents.

 

15)         Failure to cooperate with other parties to the project to timely resolve project problems.

 

16)         Failure to meet the project schedule for any reason reasonably within its control.

 

17)         Failure to attend or to be properly prepared for project meetings.

 

18)         Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards that results in paper delays, project delays, or the extraordinary expenditure of CDB resources.

 

19)         Failure to submit proper pay or modification requests, in accordance with the contractual provisions, with adequate documentation of costs and pricing within conventional industry parameters for public contracts.

 

20)         Violation of the Illinois Procurement Code.

 

21)         Failure to conform with the requirements of a design-build agreement.

 

22)         Any other cause of so serious or compelling a nature that it affects the vendor's responsibility.

 

Section 8.8060  Interim or Emergency Suspension or Modification Pursuant to Section 16 of the Capital Development Board Act

 

a)         CDB may suspend or modify a vendor's prequalification without a prior hearing, or administrative procedure, for one or more of the following causes:

 

1)         The public interest, safety or welfare requires the suspension or modification.

 

2)         An event or series of events, including, but not limited to:

 

A)        The filing of an indictment or of formal charges by information (complaint) charging the vendor or a key person with the vendor with a crime.

 

B)        Suspension or modification of a license or prequalification by another State agency, federal agency or other branch of government after hearing or by agreement.

 

C)        Failure to comply with applicable laws, including, but not limited to, the BEMFD Act, the Prevailing Wage Act, the Steel Products Procurement Act, and requirements relating to occupational licensing.

 

D)        Material breach of a contract, including, but not limited to, one or more of the causes set forth in Section 8.8057.

 

E)        Failure to satisfactorily perform work on, or breach of, a CDB contract, including, but not limited to, one or more of the causes set forth in Section 8.8057, when:

 

i)          The issue has been brought to the attention of vendor management in writing;

 

ii)         CDB construction administration has met with vendor representatives and discussed the issue;

 

iii)        CDB conveys to the vendor what action or nonaction is necessary and in accordance with the contract documents;

 

iv)        CDB has initiated contractual remedies as may be appropriate, such as, but not limited to, stopping the work, rejecting the work, carrying out the work, or ordering acceleration of the work; and

 

v)         The vendor willfully and unreasonably refuses to comply or to obtain subcontractors, personnel or other resources that would enable it to comply.

 

b)         When prequalification is suspended or modified pursuant to this Section, the CPO and the vendor will be notified in writing and, within 30 days after the notice, CDB will commence administrative procedures under Subpart T.

 

c)         When prequalification is suspended or modified pursuant to subsection (a)(2)(E), if the vendor cures the situation within 30 days after the notice, the suspension or modification may be rescinded by written notice. 

 

Section 8.8065 Denial of Prequalification

 

a)         This Section is applicable to vendors who are one of the following:

 

1)         First-time applicants for CDB prequalification.

 

2)         Vendors who sent a renewal application that arrived at CDB after the prequalification expiration date or could not reasonably be processed before the expiration date.

 

3)         Vendors who sent a renewal application that was incomplete or insufficient, so that CDB could not reasonably process the application before the expiration date.

 

b)         Vendors categorized in subsection (a) will be considered to be new applicants to CDB.  In the event that CDB denies prequalification or grants a conditional or modified prequalification, the vendor may request administrative procedures under Subpart T, but the vendor shall not be entitled to an administrative hearing.

SUBPART X: APPLICATION OF CDB ACTION

 

Section 8.8070  General

 

a)         Suspension, debarment, nullification of prequalification, modification of prequalification, issuance of conditional prequalification, or denial of prequalification by CDB or the CPO is applicable to a vendor's direct contracts with CDB and to subcontracts on CDB projects, unless otherwise determined under Section 8.8090.

 

b)         Suspension, debarment, nullification of prequalification, modification of prequalification, issuance of conditional prequalification, or denial of prequalification by CDB or the CPO is also applicable to a design-build entity's separate prequalification as an A/E or contractor with CDB, unless the circumstances are directly related to the design-build process and not to the type of performance provided as an A/E or contractor.  In these instances, CDB will issue a written determination supporting the action.

 

Section 8.8072  Violation of CDB Order

 

When a vendor works as a subcontractor on a CDB project in violation of any provisions of this Part and, continues to submit bids or offers on CDB projects when prohibited, or otherwise violates terms or conditions imposed by CDB, the CPO may extend the term of suspension, debarment, nullification, modification, or conditional prequalification, or otherwise suspend, limit or condition the ability to submit bids or offers on contracts with CDB.  If a vendor subject to a CPO order suspending or debarring the vendor, or nullifying or modifying prequalification, or making prequalification conditional, or denying prequalification and the vendor violates the order in any manner, including, but not limited to, continuing to make submittals on CDB projects, the CPO may extend the term of suspension, debarment, nullification, modification or conditional prequalification or otherwise limit or condition the ability to make submittals on contracts with CDB.

 

Section 8.8075  Nullification of Prequalification

 

When CDB determines that a contractor has knowingly made a material misrepresentation in its application for prequalification, the contractor may not re-apply to CDB for a period of 3 years.

 

a)         When the contractor has not previously applied to CDB, or failed to reapply, the 3 year period shall begin on the date of the submittal of the application.

 

b)         When the contractor has been determined to be responsible in error, the 3 year period shall begin on the date the current responsibility determination was made.

 

c)         The CPO will notify the contractor of the nullity.  The contractor may, within 30 days after notification, submit a written explanation with supporting documentation for the CPO's review.

 

d)         The CPO may cancel awards or terminate any contracts awarded that were based upon the application with misrepresentations.

 

e)         A material misrepresentation is made by knowingly submitting any untrue, misleading or deceptive information, or document containing such information, or by the concealment, suppression or omission of any information, in or from an application, that causes CDB to act differently than it would have if it had known the undisclosed or true information.

 

Section 8.8080  Denial of Award of Contract

 

Notwithstanding any other provisions of this Part, if the CPO finds a vendor non-responsible due to one or more causes set out in Section 8.8055, the CPO may deny the vendor the award of a contract.

 

Section 8.8082  Debarment

 

The CPO may debar a vendor to exclude it from bidding on CDB projects as provided in this Part or provided by statute.  The CPO will consider debarment in cases so serious and egregious in nature that a loss in excess of 5 years up to a permanent loss of bidding privileges may be warranted.  In addition to the causes listed in Section 8.8055, causes for debarment may include, but are not limited to, multiple or repetitive criminal convictions or multiple non-responsibility determinations.  Actions to debar a vendor shall not prevent CDB or the CPO from taking any other action under this Part.  Following a period of debarment, when a vendor submits a prequalification application to CDB, the application shall be deemed to be a first-time application rather than one for renewal.

 

Section 8.8085  Reapplication for Prequalification

 

When a vendor submits a prequalification application to CDB following a denial, or during or following a period of debarment, suspension, nullification, modification of ability to bid, or conditional prequalification, the vendor must affirmatively demonstrate its responsibility, including demonstrating that the reason for the denial, or imposition of suspension, debarment, nullification, modification or condition, has been remedied.

 

Section 8.8090  Extension of CPO Action

 

The effect of action imposed by the CPO will extend to all affiliates, branches, subsidiaries, divisions or parent vendors of the vendor, and to any vendor in which the contractor or its key persons have a legal or beneficial interest, unless the CPO determines otherwise in writing.

 

Section 8.8092  Effect on Current Contracts

 

Current CDB contracts may be terminated when a contractor is determined to be non-responsible and it is in the public interest to do so, whether or not the non-responsibility has a direct connection with the current contract.  Contracts may be terminated with or without further action on the vendor's prequalification.

 

Section 8.8095  Basis of Decisions

 

The CPO shall make determinations, as appropriate, concerning the substance of a vendor's business as opposed to its form, and base its decisions on the substance.  When a vendor attempts to evade the effects of a possible or actual finding of non-responsibility by changes of address, multiple addresses, changes in personnel or their titles, formation of new companies, or other devices, the CPO may take action pursuant to Section 8.8050 and Subpart R.

 

Section 8.8098  Settlement

 

Notwithstanding any provision of this Part, the parties to any contested matter concerning contractor prequalification may, at any time, enter into an agreement to resolve prequalification issues by settlement.