AUTHORITY: Implementing and authorized by Section 1-30(b) of the Illinois Procurement Code [30 ILCS 500/1-30(b)] and Section 2-12 of the Illinois State Auditing Act [30 ILCS 5/2-12].

SOURCE: Old Part repealed and new Part adopted at 24 Ill. Reg. 1836, effective February 7, 2000; amended at 35 Ill. Reg. 5307, effective April 1, 2011; amended at 37 Ill. Reg. 3741, effective April 1, 2013; amended at 39 Ill. Reg. 3561, effective March 1, 2015; recodified Title of the Part at 39 Ill. Reg. 5903; amended at 42 Ill. Reg. 3193, effective February 16, 2018; amended at 47 Ill. Reg. 18442, effective January 1, 2024.

SUBPART A: GENERAL

 

Section 500.10  Title

 

This Part may be cited as the Office of the Auditor General (OAG) Procurement Rules.

 

Section 500.20  Policy

 

All OAG procurements shall be accomplished in the most economical, expeditious and commercially reasonable manner that is in accordance with statute, this Part and other applicable rules.

 

Section 500.30  Application

 

a)         This Part applies to all procurements by the OAG with a solicitation date on or after the effective date of this Part with the exception of the following:

 

1)         contracts between the State and its political subdivisions or other governments, or between State governmental bodies except as specifically provided in this Part;

 

2)         grants;

 

3)         purchase of care;

 

4)         hiring of an individual as employee and not as an independent contractor, whether pursuant to an employment code or policy or by contract directly with that individual;

 

5)         collective bargaining contracts;

 

6)         purchase of real estate; or

 

7)         contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations, provided that the OAG chief legal counsel shall give his or her prior approval.  Anticipated litigation is that which the OAG may prosecute or defend before a court or administrative body and actions necessary to prepare for and conduct the effective legal prosecution or defense of litigation, including, but not limited to, the retention of counsel, investigators, expert witnesses and court reporters.

 

b)         Nothing in this Part shall be construed to affect or impair any contract, or any provision of a contract, entered into based on a solicitation prior to the effective date of this Part.

 

Section 500.40  Definition of Terms Used in This Part

 

As used throughout this Part, each term listed in this Section shall have the meaning set forth below unless its use clearly requires a different meaning. Terms may be defined in particular Sections for use in that Section.

 

"Amendment" − A written modification to a contract provision, as permitted by the original contract. 

 

"Award" − The determination that a particular vendor has been selected from among other potential vendors to enter into negotiations for the purpose of finalizing a contract.

 

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

 

"Bidder" − The person or entity submitting a bid.

 

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

 

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

 

"CMS" − The Department of Central Management Services.

 

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

 

"Consulting Services" − Services provided by a business or person as an independent contractor to advise and assist the OAG in solving specific management or programmatic problems involving the organization, planning, direction, control or operations of a State agency.  The services may or may not rise to the level of professional and artistic as defined in this Part.

 

"Contract" − All types of State agreements, regardless of what they may be called, for the procurement, use, or disposal of supplies, services, professional or artistic services, or construction or for leases of real property where the State is the lessee, or capital improvements, and including renewals, master contracts, contracts for financing through use of installment or lease-purchase arrangements, renegotiated contracts, amendments to contracts, and change orders.  [30 ILCS 500/1-15.30]  The term contract as used in this Part does not include supplies or services the terms governing which are established by tariff of the Illinois Commerce Commission or the Federal Communications Commission and for which there is no authorized competition.

 

"Contractor" or "Vendor" − The terms contractor and vendor are used interchangeably for purposes of this Part.  When appropriate, the term "vendor" shall also include subcontractors.

 

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

 

"Invitation for Bids" or "IFB" − The process by which the OAG requests information from bidders, including all documents, whether attached or incorporated by reference, used for soliciting bids.

 

"Items" − Anything that may be procured under this Part.

 

"OAG" − The Office of the Auditor General.

 

"Offer" − A bid, proposal or response solicited by the OAG.

 

"Offeror" − The person or entity submitting a bid, proposal or response solicited by the OAG.  A person or entity (other than an individual acting as a sole proprietor) may qualify as a bidder or offeror only if the person or entity is a legal entity authorized to do business in Illinois prior to submitting the bid, offer or proposal.

 

"Procurement Officer" − One or more OAG employees who serve at the direction of the Chief Procurement Officer of the OAG (CPO) and are responsible for conducting OAG procurement activity.

 

"Proposal" − The response to a Request for Proposals.

 

"Proposer" − The person or entity submitting a proposal.

 

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

 

"Request for Information" or "RFI" − The process by which the OAG requests information from offerors for OAG contracts for leases of real property or capital improvements.

 

"Request for Proposals" or "RFP" − The process by which the OAG requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals.

 

"Respondent" − The person or entity submitting a response to a Request for Information from the OAG.

 

"Response" − A response to a Request for Information.

 

"Responsible Offeror" − A person or entity that is capable in all respects of performing fully the contract requirements and has the integrity and reliability that will assure good faith performance.  A responsible bidder or offeror shall not include a business or other entity that does not exist as a legal entity at the time a bid, proposal or offer is submitted for a State contract.

 

"Responsive Offeror" − A person or entity that has submitted an offer conforming in all material respects to the solicitation.

 

"Service" − The furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports or supplies that are incidental to the required performance and the financing thereof.

 

"Solicitation" − An Invitation for Bids, Request for Proposals or Request for Information.

 

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

 

"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]

 

"Subcontract" – A contract with a total value of more than $50,000 between a person or entity and another person or entity who has a State contract, pursuant to which the subcontractor provides to the contractor, or, if the subcontract price is more than $50,000, another subcontractor some or all of the supplies, services, real property, remuneration or other monetary forms of consideration that are the subject of the primary contract and includes, among other things, subleases from a lessee of a State agency. For purposes of this Part, a "subcontract" does not include purchases of supplies that are incidental to the performance of a contract by a person who has a contract subject to this Part.

 

"Subcontractor" – A person or entity that enters into a contractual agreement with a total value of more than $50,000 with a person or entity who has a contract with the OAG pursuant to which the person or entity provides some or all of the supplies, services, real property, remuneration or other monetary forms of consideration that are the subject of the primary OAG contract, including subleases from a lessee of a State contract. For purposes of this Part, a person or entity is not a "subcontractor" if that person only provides supplies that are incidental to the performance of a contract by a person who has a contract subject to this Part.

 

"Supplier" – Any person or entity providing supplies, including, but not limited to, equipment, materials, printing, and insurance, and the financing of those supplies that can be procured regularly or are available on the commercial market.

 

"Supplies" − All personal property, including but not limited to equipment, materials, printing, and insurance, and the financing of those supplies that can be procured regularly or are available on the commercial market.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.50  Property Rights

 

No person shall have any right to a specific contract with the State unless that person has a contract that has been signed by an officer or employee of the purchasing agency with appropriate signature authority.  The State shall be under no obligation to issue an award or execute a contract.  [30 ILCS 500/1-25]  No person who participates in a procurement action has any right to an award or a subsequent contract. Receipt of a solicitation or procurement document, or submission of any response to a solicitation or other procurement request, solicited or otherwise, confers no right to receive an award or contract, nor does it obligate the State in any manner.

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.60  Department of Central Management Services

 

a)         To the extent practicable and available, the OAG may obtain the following supplies and services from or through CMS or another State agency with appropriate procurement authority without soliciting independent bids, proposals or responses:

 

1)         employee benefits authorized under the State Employees Group Insurance Act or other law;

 

2)         financing of any procurement;

 

3)         paper, stationery and envelopes, and any other supplies or services available from the Paper and Printing Warehouse;

 

4)         postage stamps;

 

5)         property, casualty, liability and other insurance and bonds;

 

6)         telecommunications equipment, services and software;

 

7)         utilities;

 

8)         vehicles and vehicle services, including fleet management and repairs;

 

9)         electronic data processing services, including Central Computing Facility services;

 

10)         leases of real estate and any capital improvements to leased real estate for OAG use; and

 

11)         any other supplies and services, including those available through master, scheduled or open-ended contracts established by CMS or another State agency with appropriate procurement authority.

 

b)         The CPO may submit purchase requests to CMS or another State agency with appropriate procurement authority in accordance with applicable rules.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.70  Capital Development Board

 

Any construction or construction-related professional and artistic services in excess of the small purchase threshold for construction, found on the Illinois Procurement Policy Board website (ppb.illinois.gov) and updated annually, necessary for the OAG will be procured by the CPO of the Capital Development Board or by any other appropriate State agency CPO.  Any request for such services will be submitted to the appropriate CPO in accordance with applicable rules.  In the event of an emergency, the CPO may arrange for such construction as is necessary to protect the property and records of the OAG pending the making of arrangements with the appropriate State agency CPO.

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

SUBPART B: PROCUREMENT AUTHORITY

 

Section 500.100  Conduct of Procurements

 

The Auditor General or his or her designee shall serve as Chief Procurement Officer (CPO) for purposes of this Part, and may conduct any or all procurements for the OAG.  The CPO may appoint one or more Procurement Officers to conduct procurements on behalf of the CPO in accordance with conditions specified in the terms of the appointment and this Part.

 

Section 500.110  Small Business Specialist

 

The CPO, subject to the Auditor General's approval, may designate an OAG employee with experience negotiating contracts to serve as the Small Business Specialist.

SUBPART C: PUBLICIZING PROCUREMENT ACTIONS

 

Section 500.200  Auditor General Volume of Illinois Procurement Bulletin

 

The Auditor General Volume of the Illinois Procurement Bulletin (Auditor General Bulletin) will contain procurement information relating to procurements under the responsibility of the OAG.

 

Section 500.210  Publication of Auditor General Bulletin

 

The Auditor General Bulletin will be published electronically and will be updated as needed.  The Auditor General Bulletin can be found on the Auditor General's website at http://www.auditor.illinois.gov.

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.220  Required Use of Auditor General Bulletin

 

Notice of any procurement action required by this Part to be publicized will be published in the Auditor General Bulletin.

 

Section 500.230  Supplemental Notice

 

The OAG may place advertisements in the Official State Newspaper selected by CMS or other publications to supplement notice in the Auditor General Bulletin. In the event the Auditor General Bulletin cannot be published, the Official State Newspaper may be used as a substitute for the Auditor General Bulletin.

 

Section 500.240  Error in Notice

 

When a required publication contains an error, the error may be corrected by a single notice published in the Auditor General Bulletin.

 

Section 500.250  Direct Solicitation

 

In addition to giving notice in the Auditor General Bulletin, if required, the OAG may directly contact prospective vendors.  Direct solicitation may be oral or in writing, but care should be taken to ensure that all vendors solicited in this manner receive the same information.  No direct solicitation shall be made prior to the date any required notice first appears in the Auditor General Bulletin.

 

Section 500.260  Retention of Bulletin Information

 

Information published in the Auditor General Bulletin shall be retained in electronic or paper form for a period of one year after first publication.

 

(Source:  Added at 35 Ill. Reg. 5307, effective April 1, 2011)

SUBPART D: SOURCE SELECTION AND CONTRACT FORMATION

 

Section 500.300  General Provisions

 

a)         Late Offers, Late Withdrawals and Late Modifications

 

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

 

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

 

3)         Records shall be made and, in accordance with OAG policy, kept for each late offer, late modification, or late withdrawal.

 

4)         Any other submission that has a time or date deadline shall be treated in the same manner as a late offer.

 

b)         Extension of Time

 

1)         The Procurement Officer may, prior to the date or time for submitting or modifying an offer, extend the date or time for the convenience of the OAG.

 

2)         After opening offers, the Procurement Officer may request offerors who submitted timely offers to extend the time during which the OAG may accept the offers, provided that, with regard to bids, no other change is permitted.  This extension does not provide an opportunity for others to submit offers.

 

3)         Unless otherwise provided in the solicitation, the vendor's offer must be kept firm for at least 30 calendar days after the opening date.

 

c)         Electronic and Facsimile Submissions

 

1)         The solicitation may state that electronic and fax machine submissions will be considered if they are received at the designated location by the time and date set for receipt.  Any required attachments will be submitted as stated in the solicitation.

 

2)         Electronic submissions authorized by specific language in the solicitation will be opened in accordance with OAG electronic security measures in effect at the time of opening.  Unless the electronic submission procedures provide for a secure receipt, vendor assumes risk of premature disclosure due to submission in unsealed form.

 

3)         Fax submissions authorized by specific language in the solicitation will be placed in a sealed container upon receipt and opened with other submissions.  Vendor assumes risk of premature disclosure due to submission in unsealed form.

 

d)         Intent to Submit

The solicitation may require that vendors submit, by a certain time and date, a notice of their intent to submit an offer in response to the solicitation. Offers submitted without complying with the notice of intent requirement may be rejected.

 

e)         Only One Offer Received

If only one offer is received, and if it meets all material requirements, an award may be made to the single offeror if the Procurement Officer finds that the price submitted is fair and reasonable, and that other prospective offerors had reasonable opportunity to respond, or there is not adequate time for resolicitation.  Otherwise, the procurement may be canceled.

 

f)         Alternate or Multiple Offers

 

1)         Alternate offers may be accepted if:

 

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

 

B)        only one vendor responded, in which case the alternate submission may be evaluated and treated in accordance with Section 500.340 (Sole Economically Feasible Source Procurement) of this Part; or

 

C)        the low offeror, who has met all requirements of the solicitation, has provided a lower cost alternative that meets all of the material requirements of the solicitation.

 

2)         Multiple offers may be accepted if permitted by the solicitation and submitted in accordance with instructions in the solicitation.

 

g)         Multiple Items

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

 

h)         "All or None" Offers

All or none offers may be accepted if the evaluation shows an all or none award to be the lowest cost or best value of those submitted.

 

i)          Conditioning Offers Upon Other Awards

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

 

j)          Unsolicited Offers

An award may not be made based on an unsolicited offer in place of the notice and competition requirements of this Part.

 

k)         Clarification of Offers

The Procurement Officer may request that a vendor clarify its offer as a part of the evaluation process.  A vendor shall not be allowed to materially change its offer in response to a request for clarification.  A clarification is not an opportunity to make material changes or for submission of best and finals as authorized elsewhere in this Part.

 

l)          Assignment, Novation or Change of Name

 

1)         Assignment.  No OAG contract is transferable, or otherwise assignable, without the written consent of the Procurement Officer, provided, however, that a vendor may assign money receivable under a contract after due notice to the OAG.  Assignment may require the execution of a contract with the assignee and in such cases the assignee must meet all requirements for contracting with the OAG. Any purported assignment without prior written consent shall be null and void.

 

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 the OAG;

 

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

 

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

 

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

 

m)        Use of Source Selection Method that is Not Required

If a method of source selection is used that it is not, by law, required (e.g., use of a competitive sealed bid for a small purchase), compliance with the rules governing the method of source selection used is required.

 

n)         Vendor Signature

An offer submitted unsigned will be evaluated if the vendor submits a written signature acceptable to the Procurement Officer within the time specified by that officer.

 

o)         Stringing

Dividing or planning procurements to avoid use of competitive procedures (stringing) is prohibited.

 

p)         Confidential Data

Vendors must clearly identify in writing, by page and paragraph, any information submitted to the OAG claimed to be  exempt from the disclosure requirement of the Illinois Freedom of Information Act (FOIA) [5 ILCS 140] and must identify the basis of the claimed exemption and show how that basis applies to the request for exemption.  Information submitted without a claim of exemption may be disclosed to the public without notice or permission.  Information submitted with a claimed exemption may still be disclosed to the public if determined by the OAG, or other appropriate party, that the claimed exemption does not meet the requirements for withholding the information under FOIA.  The OAG will attempt to provide reasonable notice and opportunity to object to the vendor prior to disclosure of any material claimed by the vendor to be exempt from FOIA.

 

q)         Notice of Subcontractor

Any contract entered into under this Part shall state whether the services of a subcontractor will be used.  The contract shall include the name and address of each subcontractor having a subcontract with an annual value of more than $50,000, the general type of work to be performed by each subcontractor, and the expected amount of money each will receive under the contract.  If, at any time during the term of a contract, a contractor desires to add or change any subcontractor having a subcontract with an annual value of more than $50,000, the contractor shall promptly notify, in writing, the Procurement Officer of the name and address of the proposed subcontractor, the general type of work to be performed by the proposed subcontractor, and the expected amount of money each new or replaced subcontractor will receive under the contract.  Upon request of the Procurement Officer, the contractor shall provide the Procurement Officer with a copy of any new or amended subcontract within 15 calendar days after the request is made. A subcontractor, or contractor on behalf of a subcontractor, may identify information that is deemed proprietary or confidential. If the Procurement Officer determines the information is not relevant to the primary contract, the Procurement Officer may excuse the inclusion of the information. If the Procurement Officer determines the information is proprietary or could harm the business interest of the subcontractor, the Procurement Officer may, in his or her discretion, redact the information. Redacted information shall not become part of the public record.

 

r)          Reverse Auction

 

1)         Use.  The CPO, or his or her designee, may procure supplies or services through a competitive electronic auction bidding process if the CPO determines that the use of such a process will be in the best interest of the State. 

 

2)         Process.  An invitation for bids shall be issued and shall include a procurement description, all material contractual terms, whenever practical, and conditions applicable to the procurement, including a notice that bids will be received in an electronic auction manner.  Bids shall be accepted electronically at the time and in the manner designated in the invitation for bids.  During the auction, a bidder's price shall be disclosed to other bidders.  Bidders shall have the opportunity to reduce their bid prices during the auction.

 

3)         Notice.  Public notice of the electronic auction bidding process shall be published in the Auditor General Bulletin at least 14 calendar days before the date set for the opening of bids.  At the conclusion of the auction, the record of the bid prices received and the name of each bidder shall be open to public inspection.

 

4)         Award.  The contract shall be awarded within 60 calendar days after the auction by written notice to the lowest responsible bidder, or all bids shall be rejected.  Extension of the date for award may be made by mutual written consent of the Procurement Officer and the lowest responsible bidder.

 

5)         Prohibition.  This subsection (r) does not apply to procurements of professional and artistic services, telecommunications services, communication services or information services, or contracts for construction projects.

 

s)         Incorporation by Reference

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

 

t)          Computation of Days

The time within which any act provided in this Part is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday, and then it shall also be excluded. If the day succeeding a Saturday, Sunday, or holiday is also a holiday, a Saturday, or a Sunday, then that succeeding day shall also be excluded. For the purposes of this Part, "holiday" means: New Year's Day; Dr. Martin Luther King, Jr.'s Birthday; Lincoln's Birthday; President's Day; Memorial Day; Independence Day; Labor Day; Columbus Day; Veterans' Day; Thanksgiving Day; Christmas Day; and any other day from time to time declared by the President of the United States or the Governor of Illinois to be a day during which the agencies of the State of Illinois that are ordinarily open to do business with the public (e.g., the biennial General Election Day) shall be closed for business.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.310  Competitive Sealed Bidding

 

a)         Application

Competitive sealed bidding is the required method of source selection except as allowed by this Part.  The provisions of this Section apply to every procurement required to be conducted by competitive sealed bidding.

 

b)         The Invitation for Bids

 

1)         Use.  The Invitation for Bids (IFB) is used to initiate a competitive sealed bid procurement.

 

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

 

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

 

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

 

C)        the contract terms and conditions, including warranty and bonding or other security requirements, as applicable.

 

3)         Incorporation by Reference.  The IFB may incorporate documents by reference provided that the IFB specifies where such documents can be obtained.

 

c)         Bidding Time

Bidding time is the period of time between the date of notice or distribution of the IFB and the time and date set for receipt of bids.  In each case, bidding time will be set to provide bidders a reasonable time to prepare their bids. A minimum of 14 calendar days shall be provided unless a shorter time is authorized by this Part.

 

d)         Bidder Submissions

Bid Form.  The IFB may include a form or format for submitting bids.  If a form or format is specified, vendor shall submit bids as instructed.

 

e)         Public Notice

 

1)         Publication.  Every new procurement for supplies and services in excess of the small purchase amount that must be procured using an IFB shall be publicized in the Auditor General Bulletin at least 14 calendar days before the date set for bid opening.

 

2)         Public Availability.  A copy of the IFB shall be made available for public inspection.

 

3)         Distribution.  IFBs or Notices of the Availability of Invitations for Bids may be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition.  Notices of Availability shall, at a minimum, indicate where the IFB may be obtained, generally describe what is needed, and indicate the due date for bids.  Where appropriate, the Procurement Officer may require payment of a fee or a deposit for supplying the IFB.

 

f)         Pre-Bid Conference

Pre-bid conferences may be conducted to enhance understanding of the procurement requirements.  The pre-bid conference shall be announced as part of the IFB or, if the IFB has been issued, to all prospective bidders known to have received an IFB.  The conference may be designated as attendance mandatory or attendance optional.  The conference should be held long enough after the IFB has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparation of bids.  Nothing stated at the pre-bid conference shall change the IFB unless a change is made by written amendment to the IFB.

 

g)         Amendments to Invitations for Bids

 

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

 

2)         Distribution.  Amendments shall be made available to all prospective bidders known to have received an IFB or, if a conference was held and attendance was mandatory, only to those prospective bidders who attended.

 

3)         Timeliness.  Amendments shall be made available within a reasonable time to allow prospective bidders to consider them in preparing their bids.  If the time and date set for receipt of bids will not permit such preparation, the amendment shall extend the response time.  If necessary, the response time may be extended by e-mail, fax or telephone and confirmed in the amendment.

 

h)         Pre-Opening Modification or Withdrawal of Bids

 

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

 

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.

 

i)          Receipt, Opening and Recording of Bids

 

1)         Receipt.  Upon its receipt, each bid and modification shall be time-stamped but not opened and shall be stored in a secure place until the time and date set for bid opening.  If a bid is opened in error, the file shall so state.

 

2)         Opening and Recording

 

A)        Bids and modifications shall be opened publicly at the time, date, and place designated in the IFB.  Opening shall be witnessed by a State employee or any other person present, but the person opening bids shall not serve as witness.  The name of each bidder, the bid price, and such other information as is deemed appropriate by the Procurement Officer shall be recorded and the name of each bidder read aloud or otherwise made available. The name of the witness shall also be recorded at the opening.

 

B)        All bids, except as otherwise provided in subsection (i)(3) of this Section, and the bid record, shall be available for public inspection after award.

 

3)         Confidential Data.  The Procurement Officer shall examine the bids to determine the validity of any written requests for nondisclosure of trade secrets or other proprietary data.  If the parties do not agree as to the disclosure of data or other information, the bid shall be rejected as nonresponsive.

 

j)          Bid Evaluation and Award

 

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

 

2)         Responsibility.  Responsibility of prospective vendors is covered by Section 500.430 (Responsibility) of this Part.

 

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

 

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

 

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

 

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

 

iii)        other examinations to determine whether it conforms with any other purchase description requirements.

 

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

 

4)         Determination of Lowest Bidder.  Following determination of product or service acceptability as set forth in this subsection (j), bids will be evaluated to determine which bidder offers the lowest cost to the OAG in accordance with the evaluation criteria set forth in the IFB.  Only objectively measurable criteria that are set forth in the IFB shall be applied in determining the lowest bidder.  Examples of such criteria include, but are not limited to, transportation cost, administrative cost, and ownership or life-cycle cost formulas.  Evaluation factors need not be precise predictors of actual future costs, but to the extent possible such evaluation factors shall be reasonable estimates based upon information the OAG has available concerning future use and shall provide for the equitable treatment of all bids.

 

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

 

k)         Documentation of Award

Following award, a record showing the successful bidder shall be made a part of the procurement file.

 

l)          Award to Other Than Low Bidder

 

1)         The Procurement Officer may award to other than the lowest responsible and responsive bidder upon a written determination that award to another bidder is in the State's best interest.  A description of the agency's needs, a determination that the anticipated cost will be fair and reasonable, a listing of all responsible and responsive bidders, and the name of the bidder selected, pricing, and the reasons for selecting this bidder instead of the low bidder must be published in the Auditor General Bulletin.

 

2)         This action may be appropriate when the difference in quality or speed of delivery is so great as compared to the difference in price, and considering the OAG's needs, that a best value award is justified.  However, if the difference in price is significant, the Procurement Officer may not utilize this provision.

 

m)        Publicizing Award

The successful bidder shall be notified of award and such notification may be in the form of a letter, purchase order or other clear communication.  Notice of award shall be issued by either paper or electronic means to all offerors submitting responses to the solicitation and published in the Auditor General Bulletin prior to contract execution.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.315  Multi-Step Sealed Bidding

 

When it is considered impracticable to initially prepare a definitive purchase description to support an award based on price, an IFB may be issued requesting the submission of unpriced offers to be followed by an IFB limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.

 

Section 500.320  Competitive Sealed Proposals

 

a)         The Competitive Sealed Proposal method of source selection shall be used to procure professional and artistic services, except as otherwise provided in subsection (b) of this Section.  Other supplies and services may be procured through the Competitive Sealed Proposal method of source selection, on a case-by-case basis, when it is determined by the Procurement Officer that competitive sealed bidding is either not practicable or advantageous.

 

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

 

2)         "Practicable" Distinguished from "Advantageous".  As used in this Section, "practicable" denotes what may be accomplished or put into practical application, and "advantageous" connotes a judgmental assessment of what is in the State's best interest.  Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest.

 

A)        Factors to be considered in determining whether competitive sealed bidding is not practicable include:

 

i)          whether the contract needs to be other than a fixed-price type;

 

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

 

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

 

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

 

v)         whether the primary consideration in determining award may not be price.

 

B)        Factors to be considered in determining whether competitive sealed bidding is not advantageous include:

 

i)          if prior procurements indicate that competitive sealed proposals may result in more beneficial contracts for the State; and

 

ii)         whether the factors listed in subsection (a)(2)(A) are desirable, in conducting a procurement, rather than necessary.

 

b)         All new procurements of professional and artistic services shall be made using the procedures contained in this Section, except:

 

1)         Procurements under Section 500.330 (Small Purchases);

 

2)         Procurements under Section 500.340 (Sole Source Procurement);

 

3)         Procurements under Section 500.350 (Emergency Procurements);

 

4)         Procurements of contract audit services pursuant to subsection (c); and

 

5)         Procurements subject to the Architectural, Engineering and Land Surveying Qualifications Based Selection Act [30 ILCS 535].

 

c)         Contract Audit Rotation

 

1)         Auditor Retention Policy.  Initial audits by a contractor involve audit hours to identify key records and personnel, become familiar with agency operations and the electronic data processing environment, determine what internal controls and procedures are in place, and develop agency specific audit programs.  Retaining a contractor for successive audits of the same agency generally allows audits to be conducted more economically, efficiently and effectively, and minimizes audit effort by both the contractor and the agency under audit.  Professional auditing standards generally recognize the importance of an auditor retention policy.

 

2)         Rotation Policy.  To maximize the efficiencies obtained by auditor retention, it is the OAG's general policy, subject to the OAG's sole discretion, to maintain the same contractor on an audit engagement for six successive fiscal years, subject to an examination of those factors, including but not limited to performance review, the satisfactory negotiation of terms (including price) and the annual availability of an appropriation.

 

3)         Emergency Purchases.  The term of a contract for audit or examination services procured in compliance with the emergency purchase provisions of Section 500.350 shall not be limited to 90 calendar days but shall be valid until the completion of the audit or examination to which the contract relates.

 

d)         Contents

The RFP shall be in the form specified by the Procurement Officer and shall contain at least the following information:

 

1)         instructions and information to proposers concerning the proposal submission requirements, including the time and date set for receipt of proposals, and the address of the office to which proposals are to be delivered;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

e)         Prequalification

The Procurement Officer shall maintain a list of prequalified professional and artistic vendors in accordance with Section 500.420.  Persons may amend statements of qualifications at any time by filing a new statement. Failure of a professional and artistic vendor to prequalify shall not be cause for rejection of a proposal provided that the responsive offeror supplies with its proposal all information defined by the prequalification process.

 

f)         Public Notice

 

1)         Proposals shall be obtained by issuing an RFP.  Notice of Intent to Issue an RFP may be made by the Procurement Officer.

 

2)         Availability of the RFP shall be published in the Auditor General Bulletin at least 14 calendar days before proposals are due.

 

3)         The RFP shall also be distributed to prequalified persons expressing interest in performing the services required by the proposed contract.

 

g)         Pre-Proposal Conference

A pre-proposal conference, if appropriate, shall be conducted in accordance with Section 500.310(f) (Pre-Bid Conference).  Such a conference may be held anytime prior to the date established for submission of proposals.

 

h)         Receipt and Registration of Proposals

Proposals shall not be opened publicly but shall be opened in the presence of at least one witness.  Proposals and modifications shall be time-stamped upon receipt and held in a secure place until the established due date.  After the date established for receipt of proposals, a Register of Proposals shall be prepared which shall include for all proposals the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the supply or service offered.  All proposals, except as otherwise provided in subsection (i), and the Register of Proposals, shall be available for public inspection after award.

 

i)          Confidential Data

The Procurement Officer shall examine the proposals to determine the validity of any written requests from the vendor for nondisclosure of trade secrets or other proprietary data.  If the parties do not agree as to the disclosure of data or other information, the proposal shall be rejected as non-responsive.

 

j)          Evaluation of Proposals

The requests for proposals shall state the relative importance of price and other evaluation factors.  Proposals shall be submitted in 2 parts:  the first, covering items except price, and the second, covering price.  The first part of all proposals shall be evaluated and ranked independently of the second part of all proposals.   Factors not specified in the RFP shall not be considered.  Numerical rating systems may be used but are not required.

 

k)         Discussions

 

1)         Discussions Permissible. 

 

A)        The Procurement Officer may conduct discussions with any offeror to:

 

i)          promote understanding of the OAG's requirements and the offerors' proposals;

 

ii)         determine in greater detail such offeror's qualifications;

 

iii)        explore with the offeror the scope and nature of the required services, the offeror's proposed method of performance, and the relative utility of alternative methods of approach; and

 

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

 

B)        The Procurement Officer may allow changes to the proposal based on those discussions.

 

2)         No Disclosure of Information.  Discussions shall not disclose any information derived from proposals submitted by other offerors, and information contained in any proposals shall not be disclosed until after award of the proposed contract has been made.

 

3)         Best and Final Offers.  The Procurement Officer may request best and final offers from those offerors deemed acceptable after completion of any discussions.  Best and final offers shall be submitted by a specified date and time.  The Procurement Officer may conduct additional discussions or change the OAG's requirements and require another submission of best and final offers. The scope of the best and final and the number of offerors allowed to participate shall be defined by the Procurement Officer.  If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediately previous offer will be construed as its best and final offer.

 

4)         Nothing in this Section shall prohibit the Procurement Officer from making a selection that represents the best value, qualifications, price and other relevant factors established in the RFP being considered.  The Procurement Officer may, in considering best value, determine the proposal from a fully qualified vendor that submitted the lowest price to be the best value without further evaluation.

 

l)          Award

An award shall be made by the Procurement Officer pursuant to a written determination showing the basis on which the award was found to be most advantageous to the OAG, taking into consideration price and the evaluation factors set forth in the request for proposals.  The contract file shall contain the basis on which the award is made.  If the price of the most qualified vendor is not the lowest price, and if the price exceeds $100,000, the Procurement Officer must state in writing why a vendor other than the low priced vendor was selected and that determination must be published in the Auditor General Bulletin.

 

m)        Publicizing Awards

Notice of award shall be issued by either paper or electronic means to all offerors submitting responses to the solicitation and published in the Auditor General Bulletin prior to contract execution.

 

n)         Pre-solicitation Request for Information

When the Procurement Officer does not have sufficient information about available supplies or services to issue an RFP, the Procurement Officer may issue a Pre-solicitation request for information inviting vendors to submit non-price information about the availability of specified types of supplies or services.  Public notice of the Pre-solicitation request for information shall be published in the Auditor General Bulletin at least 14 calendar days before the date set for the receipt of information.  The submission of information by a vendor in response to a Pre-solicitation request for information is not a prerequisite for that vendor to respond to a subsequent IFB or RFP for the types of supplies or services for which information was solicited, and the issuance of a Pre-solicitation request for information does not commit the OAG to make any procurement of supplies or services of any kind.  Confidential information will not be accepted from a vendor in response to a Pre-solicitation request for information.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.330  Small Purchases

 

a)         Application

 

1)         Any individual procurement not exceeding $100,000 for supplies or services, not exceeding $100,000 for professional and artistic services, and not exceeding $100,000 for construction, may be made without advance notice, competition or use of any prescribed method of source selection.

 

2)         Any change identified by the United States Department of Labor in the Consumer Price Index, as certified by CMS or another State agency with appropriate authority.  The small purchase maximums shall be likewise recalculated for each July 1 thereafter.  Changes to the small purchase maximums can be found on the Illinois Procurement Policy Board website (ppb.illinois.gov) and updated annually.

 

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

 

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

 

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

 

e)         Notice of award shall be published in the Auditor General Bulletin no later than 14 calendar days after the contract is awarded.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.340  Sole Economically Feasible Source Procurement

 

a)         Application

The provisions of this Section apply to procurement from a sole economically feasible source (referred to as sole source) unless the estimated amount of the procurement is within the limit set in Section 500.330 (Small Purchases) or unless emergency conditions exist as defined in Section 500.350 (Emergency Procurements), in which case small purchase or emergency procedures may be used.

 

b)         Conditions for Use of Sole Source Procurement

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

 

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)         the item is to be procured for commercial resale;

 

4)         non-competitive public utility services;

 

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

 

6)         media for advertising;

 

7)         art, educational (including training for continuing professional education, professional memberships and related expenses) or entertainment services; and

 

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

 

c)         Changes

 

1)         Changes to an existing contract that are germane and reasonable in scope and cost in relation to the original contract or program, that are necessary or desirable to complete the contract or program, and that can be best accomplished by the contract holder may be procured under this Section when the Procurement Officer determines that the cost of delay or disruption to the contract or program, and the cost of a new solicitation, clearly indicate that the existing vendor is the sole economically feasible source.

 

2)         A change (whether in cost or rate) that does not exceed the applicable small purchase limit as defined in Section 500.330 of this Part, or that is an emergency as defined in Section 500.350 of this Part, may be made in accordance with procedures governing those Sections and need not comply with these sole source procedures.

 

d)         Procurement Officer to Determine

The Procurement Officer shall determine whether a procurement shall be made as a sole source.  The determination and its basis shall be in writing.

 

e)         Sole Source Process

 

1)         Publication:  Before entering into a sole source contract, a Procurement Officer must publish a written description of intent to enter into a sole source contract along with a description of the item to be procured and the intended sole source contractor.  The notice shall include the sole source procurement justification, a description of the item to be procured, and the intended sole source contractor.  This notice must be posted in the Auditor General Bulletin at least 14 calendar days before a sole source contract is awarded.  

 

2)         Hearing:  An interested party may submit a written request for a public hearing.  Any hearing shall be conducted in accordance with the procedures set forth in Section 500.1340.

 

f)         Negotiation in Sole Source Procurement

The Procurement Officer shall conduct negotiations, as appropriate, to reach contract terms, including price, and shall maintain a record of each sole source procurement showing:

 

1)         the vendor's name;

 

2)         the amount and type of the contract;

 

3)         what was procured; and

 

4)         the identification number of the contract file.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.350  Emergency Procurements

 

a)         Application

The provisions of this Section apply to every procurement over the small purchase limit set in Section 500.330 (Small Purchases) of this Part and that is not a sole source procurement under Section 500.340 made under emergency, including quick purchase, conditions.

 

b)         Definition of Emergency Conditions

Procurements may be made under this Section 500.350 in the following circumstances:

 

1)         Traditional circumstances include but are not limited to:

 

A)        public health or safety, including the health or safety of any particular person, is threatened;

 

B)        immediate repairs are needed to OAG property to protect against further loss or damage to OAG property, or to prevent loss or damage to OAG property;

 

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

 

D)        action is needed to ensure the integrity of State records;

 

E)        equipment or services are necessary in the furtherance of covert activities (including the conduct of audits and investigations) lawfully conducted by the OAG.  Any required disclosures may be postponed or shall be made so as not to jeopardize those covert activities;

 

F)         immediate action is necessary to avoid lapsing or loss of federal or donated funds; or

 

G)        the need for items to protect or further State interests is immediate and use of other competitive source selection procedures under this Part cannot be accomplished without significant risk of causing serious disadvantage to the State.

 

2)         After Unsuccessful Competitive Sealed Bidding or Request for Proposals. When bids or proposals received pursuant to a competitive sealed bid or competitive sealed proposal method are unreasonable or non-competitive, or the price exceeds available funds, and time or other circumstances will not permit the delay required to resolicit competitive sealed bids or proposals, and if emergency conditions exist after an unsuccessful attempt to use competitive sealed bidding or competitive sealed proposals, an emergency procurement may be made.

 

3)         Extension to Allow Competition.  Extending an existing contract for such period of time as is needed to conduct a competitive method of source selection when terminating or allowing the contract to terminate would not be advantageous to the OAG.

 

4)         Quick Purchase

 

A)        A supplier announces bankruptcy, cessation of business, or loss of franchise, or gives other similar reason such that making a purchase immediately is more advantageous to the OAG than instituting a competitive procurement under the provisions of this Part for the supplies or services;

 

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

 

C)        availability of rare items, such as books of historical value;

 

D)        the procurement is for entertainment.

 

c)         Scope and Duration of Emergency Conditions

Emergency procurements shall be limited to those supplies, services or construction items necessary to meet the emergency.  Except as otherwise provided in Section 500.320(c)(3), the term of the emergency purchase shall be limited to the time reasonably needed for a competitive procurement, not to exceed 90 calendar days.  A contract may be extended beyond 90 calendar days if the Procurement Officer determines additional time is necessary and the contract scope and duration are limited to the emergency.  Prior to execution of the extension, the Procurement Officer must hold a public hearing and provide written justification for all emergency contracts.  Members of the public may present testimony.

 

d)         Source Selection Methods

Any method of source selection, whether or not identified in this Part, may be used to conduct the procurement in emergency situations.  The procedure used shall be selected to assure that the required items are procured in time to meet the emergency.  Such competition as is practicable shall be obtained.

 

e)         Determination and Record of Emergency Procurement

 

1)         Determination.  The Procurement Officer shall make a written determination stating the basis for an emergency procurement and for the selection of the particular contractor.  These determinations shall be kept in the contract file.

 

2)         Record.  A statement of each emergency procurement shall be filed with the Auditor General within 10 calendar days after the procurement and shall include the following information:

 

A)        the vendor's name;

 

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

 

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

 

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

 

3)          Notice of the Emergency Procurement.  Notice of the emergency procurement shall be published in the Auditor General Bulletin no later than 5 calendar days after the contract is awarded and shall include a description of the procurement, the reasons for the emergency procurement and the total cost.  When only an estimate of the total cost is known at the time of publication, the estimate shall be identified as an estimate and published.  When the actual total cost is determined, it shall also be published in like manner before the 10^th day of the next succeeding month.

 

4)          Notice of Extension.  Notice of intent to extend an emergency contract shall be published in the Auditor General Bulletin no later than 14 calendar days prior to a public hearing.  Notice shall include at least a description of the need for the emergency purchase, the contractor and, if applicable, the date, time and location of the public hearing. Any hearing shall be conducted in accordance with the procedures set forth in Section 500.1340.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.360  Other Methods of Source Selection

 

Other methods of source selection, as defined by an agency with statutory procurement authority in its adopted rules may be used by the OAG when, in the CPO's best judgment, such methods of source selection are in the State's best interests.

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.370  Tie Bids and Proposals

 

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

 

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

 

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 500.1110 (Resident Vendor Preference) of this Part.  

 

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

 

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

 

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

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.380  Modification, Correction or Withdrawal of Offers

 

a)         Modification, Correction or Withdrawal Before Opening

An offeror may withdraw or modify an offer if notice of the withdrawal, correction or modification is received by the OAG before the latest time specified for receipt of offers.  Any modification, correction or withdrawal, however, must be made in writing and received by the OAG prior to the scheduled due date and time.  When time is of the essence, the OAG may agree to receive modifications, corrections or withdrawals by electronic mail, fax or telephone.  An originally signed confirmation of a telephone modification, correction or withdrawal shall be mailed or delivered by the offeror on the same day.

 

b)         Mistakes Discovered After Opening but Before Award

 

1)         Waiver of Minor Informalities.  A minor informality or irregularity is one that is a matter of form or pertains to some immaterial or inconsequential defect or variation from the exact requirement of the solicitation, the correction or waiver of which would not be prejudicial to the State (i.e., the effect on price, quality, quantity, delivery, or contractual conditions is negligible). The Procurement Officer shall waive these informalities or allow the offeror to correct them, depending on which is in the best interest of the State.

 

2)         Correction of Mistakes in Which Intended Correct Information is Evident.  If the mistake and the intended correct information are clearly evident on the face of the bid or proposal document, the information shall be corrected and the bid or proposal may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid or proposal document are typographical errors, errors in extending unit prices, transpositional errors, and arithmetical errors.

 

3)         Withdrawal When Intended Correct Information is Not Evident.  The low price bid or proposal may be withdrawn if:

 

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

 

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

 

c)         Correction During Best and Final Offers

If best and final offers are requested, any offeror may freely correct any mistake prior to the date set for receipt of best and final offers, provided the correction would not be contrary to the fair and equal treatment of other offerors.   

 

d)         Mistakes Discovered After Award

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

 

e)         Documentation Required

When an offer is modified, corrected or withdrawn, or modification, correction or withdrawal is denied, a written determination shall be prepared by the Procurement Officer showing that relief was granted or denied in accordance with this Part. 

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.390  Cancellation of Solicitations; Rejection of Offers

 

a)         Policy

Any solicitation may be canceled before or after opening when the Procurement Officer believes cancellation to be in the OAG's best interest.  Nothing shall compel the award of a contract.

 

b)         Cancellation of Solicitation; Rejection of All Offers

A solicitation may be canceled in whole or in part when the Procurement Officer determines in writing that such action is in the OAG's best interest for reasons including, but not limited to:

 

1)         the OAG no longer requires the supplies, services or construction;

 

2)         the OAG no longer can reasonably expect to fund the procurement;

 

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

 

4)         ambiguous or otherwise inadequate specifications;

 

5)         the solicitation did not provide for consideration of all factors of significance to the OAG;

 

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

 

7)         all otherwise acceptable offers received are at clearly unreasonable prices; or

 

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

 

c)         Notice of Cancellation

When a solicitation is canceled, notice of cancellation, including a brief explanation of the reason for cancellation, shall be posted to the Auditor General Bulletin.

 

d)         Rejection of Individual Offers

 

1)         Individual offers may be rejected for reasons including, but  not limited to:

 

A)        the vendor that submitted the offer is nonresponsible as determined under Section 500.430 (Responsibility);

 

B)        the offer is not responsive, that is, it does not conform in all material respects to the solicitation;

 

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

 

D)        the proposed price, which may include options, is clearly unreasonable.

 

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

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.395  Public Procurement File

 

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

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

SUBPART E: SUPPLIERS, PREQUALIFICATION AND RESPONSIBILITY

 

Section 500.400  Suppliers

 

The OAG may contract with any qualified source of supply, including the following special sources, from which procurements may be made without notice and competition:

 

a)         Correctional Industries;

 

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

 

c)         Qualified workshops for persons with significant disabilities;

 

d)         State agencies and other governmental units.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.410  Vendor List/Required Use

 

The CPO may maintain a list of vendors who have expressed interest in contracting with the OAG.  This list may be used to solicit for small purchases, sole sources and emergency procurements, as well as to supplement Bulletin notices.

                                                                       

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.420  Prequalification

 

a)         General

 

1)         The CPO shall identify by publication in the Auditor General Bulletin the categories of supplies and services (including professional and artistic services) for which the OAG may prequalify vendors of those supplies and services.  The OAG is not required to prequalify vendors but may do so when determination of a vendor's qualifications prior to procurement would be advantageous to the OAG.

 

2)         An opportunity to prequalify shall be allowed at least one time each fiscal year.  The opportunity to prequalify shall be announced in the Auditor General Bulletin.

 

3)         When prequalifying a vendor, the Procurement Officer may limit prequalifications to determining whether a vendor has been and is likely to be "responsible" using the criteria set forth in Section 500.430 of this Part. The fact that a prospective vendor has been prequalified does not necessarily represent a finding of responsibility for a particular procurement.

 

4)         When prequalifying a vendor, the Procurement Officer may consider factors tailored to a specific procurement or type of procurement, which shall be announced in the Auditor General Bulletin.

 

5)         Except as provided in Section 500.320(e), prequalification shall not be used to bar or prevent any qualified business or person from bidding or responding to invitations for bid or requests for proposal.

 

b)         Professional and Artistic Services

Any prequalification of vendors of professional and artistic services:

 

1)         shall include, at a minimum, a specified level of:

 

A)        education;

 

B)        training;

 

C)        experience; and

 

D)        technical ability; and

 

2)         may require certification or licensure, or membership in professional associations.

 

c)         Qualified Products List

Qualified products lists are treated in Section 500.600 (Specifications) of this Part.

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.430  Responsibility

 

a)         Application

Contracts are to be made only with responsible vendors unless no responsible vendor is available to meet the OAG's needs.  If there is doubt about responsibility, and if a bond or other security would adequately protect the State's interests, then that vendor may be awarded a contract upon receipt of the bond or other security.

 

b)         Standards of Responsibility

 

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

 

A)        has available the appropriate financial, material, equipment, facility, and personnel resources and expertise (or the ability to obtain them) necessary to indicate its capability to meet all contractual requirements (the Procurement Officer may designate a level below which the vendor will be deemed "not responsible");

 

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

 

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

 

D)        has a satisfactory record of integrity and business ethics.  Vendors who are under investigation or indictment for criminal or civil actions that bear on the particular procurement or that create a reasonable inference or appearance of a lack of integrity on the part of the vendor may be declared not responsible for the particular procurement;

 

E)        is a legal entity prior to submitting the bid, offer or proposal and is authorized to transact business or conduct affairs in Illinois prior to execution of the contract;

 

F)         has supplied all necessary information in connection with the inquiry concerning responsibility;

 

G)        has a current Public Contracts number from the Illinois Department of Human Rights, pursuant to 44 Ill. Adm. Code 750.210, if required.  Proof of application prior to opening of bids or proposals will be sufficient for an initial determination;

 

H)        pays prevailing wages, if required by law; and

 

I)         is current in payment of all State of Illinois taxes, including the unemployment insurance tax.

 

2)         Information Pertaining to Responsibility.  The prospective vendor shall supply information requested by the Procurement Officer concerning the responsibility of the vendor.  The OAG may supplement this information from other sources and may require additional documentation at any time. If the vendor fails to supply the requested information, the Procurement Officer shall base the determination of responsibility upon any available information, or may find the prospective vendor nonresponsible.

 

c)         Written Determination of Nonresponsibility Required

If a vendor who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the Procurement Officer.  The final determination shall be made part of the procurement file.

 

d)         Bond for Responsibility

Vendors not having a history of performance may be considered responsible if no other disqualifying factors exist.  A bond or other security may be required of these vendors.

 

e)         Affiliated Companies

Vendors who are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing vendor that has been determined not responsible will also be determined not to be responsible unless the new organization can prove it was not set up for the purpose of avoiding an earlier determination of nonresponsibility.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

SUBPART F: BID, PROPOSAL AND PERFORMANCE SECURITY

 

Section 500.500  Security Requirements

 

a)         A Procurement Officer may require that a vendor furnish bid, proposal or performance security on OAG contracts.  Whenever security is required, except as provided herein, the procurement document will clearly indicate the type and amount of security.

 

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

 

c)         Unless the amount is set by law, the CPO will determine the amount, in dollars or percentage of contract price, that will adequately protect the State's interests.

 

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

 

e)         Permissive/Mandatory Security

 

1)         Bid or proposal security is permissive on any contract but is not appropriate on emergency or sole source procurements.

 

2)         Performance security is permissive on any contract and is recommended on contracts calling for advance payment.

 

3)         Performance security is required on all public works contracts.

 

f)         A vendor may submit a single or continuous security each year that will be applicable on all contracts of the OAG.  When such security has been obligated in an amount equal to the sum of accumulated security requirements, additional security must be submitted.

 

g)         Bid or proposal security will be returned to unsuccessful vendors as soon after award as possible.  The bid or proposal security of the successful vendor will be returned after contracts have been signed and performance security, if any, submitted.  Performance security will be returned upon full performance.

SUBPART G: SPECIFICATIONS

 

Section 500.600  Specifications  

 

a)         Responsibilities Regarding Specifications

The Procurement Officer is authorized to write specifications for procurements for the OAG.

 

b)         Procedures for the Development of Specifications

 

1)         All procurements shall be based on specifications that accurately reflect the OAG's needs.  Specifications shall clearly and precisely describe the salient technical or performance requirements.

 

2)         Specifications shall not include restrictions that do not significantly affect the technical requirements or performance requirements, or other legitimate OAG needs.  All specifications shall be written in such a manner as to describe the requirements to be met, without having the effect of exclusively requiring a proprietary supply or service, or procurement from a sole source, unless no other manner of description will suffice.

 

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

 

4)         A specification may provide alternate descriptions where two or more design, functional, or performance criteria will satisfactorily meet the OAG's requirements.

 

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

 

c)         Brand Name or Equal Specification

 

1)         Brand name or equal specifications may be used when the Procurement Officer determines in writing that:

 

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

 

B)        time does not permit the preparation of another form of specification, not including a brand name specification;

 

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

 

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

 

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

 

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

 

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

 

d)         Brand Name Only Specification

 

1)         Determination.  A brand name only specification may be used only when the Procurement Officer makes a written determination that only the identified brand name item or items will satisfy the OAG's needs.

 

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

 

3)         Competition.  The Procurement Officer shall seek to identify sources from which the designated brand name item or items can be obtained and shall solicit those sources to achieve whatever degree of competition is practicable.  If only one source can supply the requirement, the procurement shall be made under Section 500.340 (Sole Economically Feasible Source Procurement).

 

4)         Small and Emergency Procurements.  Brand name only specifications may be used when procuring items under the small (Section 500.330) and emergency (Section 500.350 of this Part) provisions.

 

e)         Qualified Products List

 

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

 

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

 

3)         Testing and Confidential Data.  Inclusion on a qualified products list shall be based on results of tests or examinations conducted in accordance with established requirements.  Except as otherwise provided by law, trade secrets, test data, and similar information provided by the supplier will be kept confidential when requested in writing by the supplier.

 

f)         Proven Products

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

 

g)         Product Demonstration

Any vendor may request time and space to demonstrate a product or service. Agreement to allow these demonstration will be solely at the OAG's discretion and will not entitle the vendor to a contract nor shall payment for the demonstration be allowed unless a written contract had been executed prior to the demonstration.

 

h)         Prohibition on Incentives

A solicitation or specification for a contract, or a contract, may not require, stipulate, suggest or encourage a monetary or other financial contribution or donation, cash bonus or incentive, or economic investment as an explicit or implied term or condition for awarding or completing the contract. 

 

i)          Prohibited Bidders and Contractors

 

1)         No person or business shall bid, offer, or enter into a contract with the OAG if the person or business assisted an employee of the OAG, who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award an OAG contract, by reviewing, drafting, directing or preparing any invitation for bids, a request for proposal, or request for information or provided similar assistance except as part of a publicly issued opportunity to review drafts of all or part of these documents. 

 

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

 

A)        initiates a communication with an employee to provide general information about products, services, or industry best practices;

 

B)        responds to a communication initiated by an employee of the OAG for the purposes of providing information to evaluate new products, trends, services or technologies;

 

C)        asks for clarification regarding a solicitation, so long as there is no competitive advantage to the person or business and the question and answer, if material, are posted to the Auditor General Bulletin as an addendum to the solicitation [30 ILCS 500/50-10.5(e)];

 

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

 

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

 

3)         Nothing in this Section prohibits a vendor developing technology, goods, or services from bidding or offering to supply that technology or those goods or services if the subject demonstrated to the State represents industry trends and innovation and is not specifically designed to meet the State's needs.

 

4)         No person or business shall submit specifications to a State agency unless requested to do so by an employee of the State.  No person or business who contracts with a State agency to write specifications for a particular procurement need shall submit a bid or proposal or receive a contract for that procurement need.

 

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

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

SUBPART H: CONTRACT TYPE

 

Section 500.700  Types of Contracts

 

a)         Subject to the limitations of this Section and unless otherwise authorized by law, any type of contract that will promote the best interests of the State may be used.

 

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

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

 

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

 

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

 

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

 

c)          A cost-reimbursement contract may be used only when a determination is made in writing that a cost-reimbursement contract is likely to be less costly to the State than any other type or that it is impracticable to obtain the item required except under that type of contract.

 

d)         Option Provisions

When a contract is to contain an option for renewal, extension or purchase, notice of such provision shall be included in the solicitation.  These options may be exercised without taking other procurement action when the option is established for exercise at the OAG's option or by mutual agreement.

 

e)         State Produced Supplies and Services

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

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

SUBPART I: DURATION OF CONTRACTS

 

Section 500.800  Duration of Contracts

 

a)         General

 

1)         A multi-term contract for a term up to 10 years, inclusive of proposed contract renewals, is authorized when determined by the Procurement Officer to be in the best interest of the State.

 

2)         A software license designated as a perpetual license is not considered a multi-term contract; it is instead a one-time purchase.

 

b)         Subject to Appropriation

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

 

c)         Conditions for Use of Multi-Year Contracts

A multi-year contract may be used when:

 

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

 

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

 

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

 

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

 

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

 

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

 

d)         Multi-Year Contract Procedure

The solicitation shall state:

 

1)         the proposed term;

 

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

 

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

 

4)         how award will be determined.

 

e)         Renewals

 

1)         Renewals may be exercised without further procurement activity, provided the initial term and the exercised renewals may not exceed 10 years, the terms and conditions do not change except as provided in the contract and the option is reserved solely to the OAG or is by mutual agreement.

 

2)         Where a renewal will result in the total term, counting the initial term and any previous renewals, to exceed 10 years, the renewal must be procured using one of the methods of source selection authorized by this Part.  This renewal will start a new term that shall not exceed 10 years.

 

3)         Notice of renewal shall be published in the Auditor General Bulletin no later than 14 calendar days after the contract is awarded.

 

f)         Cancellation of Contracts

 

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

 

A)        The successful vendor fails to furnish a satisfactory performance bond within the time specified;

 

B)        The vendor fails to make delivery at the place or within the time specified in the contract or as ordered by the OAG;

 

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

 

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

 

E)        The vendor is adjudged bankrupt; enters into receivership or makes a general assignment for the benefit of creditors due to insolvency; disregards laws, rules or instructions of the OAG; or acts in violation of any provision of the contract;

 

F)         Any other breach of contract or other unlawful act by the vendor;

 

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

 

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

 

2)         Damages

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

 

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

 

B)        cost of repeating the procurement procedure;

 

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

 

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

 

3)         Withholding Money to Compensate OAG for Damages

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

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

SUBPART J: CONTRACT MATTERS

 

Section 500.900  Prevailing Wage

 

a)         In order to be considered responsible under Section 500.430, vendors of the following classifications of services must certify to the OAG that their employees are paid wages and benefits and are working under conditions prevalent in the location where the work is to be performed:

 

1)         Printing;

 

2)         Janitorial cleaning services, window cleaning services, building and grounds services, site technician services, natural resources services, food services, and security services of $2,000 or more or $200 or more per month; and

 

3)         Public works.

 

b)         For purposes of this Section, "locality" or "location" shall have the meaning established in rules promulgated by CMS or other statutory procurement agency.

 

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

 

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

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.910  Filing with Comptroller

 

a)         Filing with Comptroller

Whenever a contract liability, except for contracts paid from personal services or contracts between the State and its employees to defer compensation in accordance with Article 24 of the Illinois Pension Code [40 ILCS 5], exceeding $20,000 is incurred by the OAG, a copy of the contract, purchase order, or lease shall be filed with the Comptroller within 30 calendar days thereafter.

 

b)         Late Filing Affidavit

When a contract, purchase order, or lease required to be filed by this Section has not been filed within 30 calendar days after execution, the OAG must file with the Comptroller an affidavit, signed by the Auditor General or his or her designee, setting forth an explanation of why the contract liability was not filed within 30 calendar days after execution.  A copy of this affidavit shall be filed with the Auditor General.

 

c)         Timely Execution of Contracts

No voucher shall be submitted to the Comptroller for a warrant to be drawn for the payment of money from the State treasury or from other funds held by the State Treasurer on account of any contract unless the contract is reduced to writing before the services are performed and filed, if so required under subsection (a), with the Comptroller.  Contractors shall not be paid for any supplies that were received or services that were rendered before the contract was reduced to writing and signed by all necessary parties.  A Procurement Officer may request an exception to this requirement by submitting a written statement to the Comptroller and Treasurer setting forth the circumstances and reasons why the contract could not be reduced to writing before the supplies were received or services were performed.  A waiver of this requirement must be approved by the Comptroller and Treasurer.  The requirements of this subsection shall not apply to emergency purchases if notice of the emergency purchase is published in the Auditor General Bulletin as required by Section 500.350.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.920  Equal Employment Opportunity; Affirmative Action

 

a)         Public Contracts

Every party to a public contract and every eligible bidder shall:

 

1)         Refrain from unlawful discrimination and discrimination based on citizenship status in employment and undertake affirmative action to assure equality of employment opportunity and eliminate the effects of past discrimination;

 

2)         Comply with applicable procedures and requirements of the Department of Human Right's (DHR) regulations concerning equal employment opportunities and affirmative action;

 

3)         Provide such information, with respect to its employees and applicants for employment, and assistance as DHR may reasonably request;

 

4)         Have written sexual harassment policies that shall include, at a minimum, the following information:

 

A)        the illegality of sexual harassment;

 

B)        the definition of sexual harassment under State law;

 

C)        a description of sexual harassment, utilizing examples;

 

D)        the vendor's internal complaint process, including penalties;

 

E)        the legal recourse, investigative and complaint process available through DHR and the Human Rights Commission;

 

F)         directions on how to contact DHR and the Commission; and

 

G)        protection against retaliation as provided by Section 6-101 of the Illinois Human Rights Act (IHRA) [775 ILCS 5].  A copy of the policies shall be provided to DHR upon request.

 

b)         Section 7-105A of the IHRA authorizes DHR to promulgate policies, rules and regulations to implement the provisions of the IHRA applicable to eligible bidders and public contractors.  DHR has promulgated rules, 44 Ill. Adm. Code 750, that establish public contractor and eligible bidder duties, obligations, and reporting requirements.  These rules require that certain employers register with DHR in order to be eligible for the award of certain public contracts (44 Ill. Adm. Code 750.Appendix A).

SUBPART K: REAL PROPERTY LEASES AND CAPITAL IMPROVEMENT LEASES

 

Section 500.1000  Applicability

 

Except as otherwise authorized or required by law, all leases for real property or capital improvements, including office and storage space, buildings and other facilities for State agencies where the State is the lessee are subject to, and shall be procured by, the OAG in accordance with this Part.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1010  Method of Source Selection  

 

Leases shall be procured by a Request for Information (RFI) process except that the process need not be used in any of the following circumstances:

 

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

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

 

c)         Specialized space available at only one location.

 

d)         Renewal or extension of leases after the effective date of this Part, provided that:

 

1)         the CPO determines in writing that renewal or extension is in the best interest of the State;

 

2)         the CPO publishes notice of the renewal or extension in the Auditor General Bulletin; and

 

3)         the length of the lease, including renewals, does not exceed 10 years.

 

e)         Leases with governmental units when deemed by the CPO to be in the best interest of the State.

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1015  Historic Area Preference

 

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

 

(Source:  Added at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1020  Request for Information

 

a)         RFI Form

When required, an RFI shall be issued and shall include:

 

1)         the type of property to be leased;

 

2)         the proposed uses of the property;

 

3)         the duration of the lease;

 

4)         the preferred location of the property; and

 

5)         a general description of the configuration desired.

 

b)         Public Notice

Public notice of the RFI for the availability of real property to lease shall be published in the Auditor General Bulletin at least 14 calendar days before the date set forth in the request for receipt of responses and shall also be published in similar manner in a newspaper of general circulation in the community or communities where the OAG is seeking space. Notice may also be mailed to owners of property that may meet the OAG's needs after public notice has been published in the Auditor General Bulletin.

 

c)         Response

The RFI response shall consist of written information sufficient to show that the respondent can meet minimum criteria set forth in the RFI. All responses will be publicly opened on the announced date.  Names of all parties submitting responses will be made available to the public immediately following the opening of responses.  No other information concerning responses shall be publicly disclosed until award or other conclusion of the RFI process.

 

d)         Negotiation and Determination

 

1)         The Procurement Officer may enter into discussions with respondents of the RFI for the purpose of clarifying OAG needs and the information supplied by the respondents.  On the basis of the information supplied and discussions, if any, the Procurement Officer shall make a written determination identifying the responses that meet the minimum criteria set forth in the RFI.  Negotiations shall be entered into with all qualified respondents for the purpose of securing a lease that is in the best interest of the State.  Site visits may be made as part of the discussion and/or negotiation process.

 

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

 

e)         Contract Award, Reporting and Filing

 

1)         The Procurement Officer or designee shall review all relevant information and recommend which response will be accepted based on an evaluation of all responsive offers.  The final award decision will be published in the Auditor General Bulletin.  Notification of award will be sent to all respondents.

 

2)         When the lowest response by price is not selected, a written report of the negotiation shall be retained in the lease files and shall include the reasons for the final selection. The written reasons for the selection shall be published in the Auditor General Bulletin.

 

f)         Emergency lease procurements may be made pursuant to Section 500.350.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1030  Lease Requirements

 

a)         Length of Leases

 

1)         Maximum Term.  Except where a longer term is authorized by law, leases shall be for a term not to exceed 10 years inclusive of proposed contract renewals and shall include a termination option in favor of the OAG after no more than 5 years.

 

2)         Renewal Option.  Leases may include a renewal option.  An option to renew may be exercised only when the Procurement Officer determines in writing that renewal is in the best interest of the OAG and notice of the exercise of the option is published in the Auditor General Bulletin at least 60 calendar days prior to the exercise of the option.

 

3)         Holdover.  No lease may continue on a month-to-month or other holdover basis for a total of more than 6 months.

 

b)         Sufficiency of Funds

All leases shall recite that they are subject to termination and cancellation as provided in Section 500.800(b).

 

c)         Lessor's Failure to Make Improvements

Each lease must provide for actual or liquidated damages upon the lessor's failure to make improvements agreed upon in the lease.  The actual or liquidated damages shall consist of a reduction in lease payments equal to the corresponding percentage of the improvement value to the lease value.  The actual or liquidated damages shall continue until the lessor complies with the lease and the improvements are accepted by the leasing State agency.

 

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

 

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

 

2)         The disclosure shall set forth all ownership interests.  By way of example, the disclosure should identify the names of the beneficiaries of a land trust in addition to the trustee, the names of all partners whether general or limited in nature, the names of all members or managers of a limited liability company and the names of all shareholders in a corporation who are entitled to receive more than 7½% of the total distributable income of the entity.  If the entity is publicly traded and no readily known individual owns more than a 7½% interest, then the requirement of this subsection (d)(2) may be met by an officer or managing agent of the entity making an affirmative statement to this effect under oath.

 

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

 

4)         It shall be the responsibility of the lessor to notify the Procurement Officer of any changes in ownership or beneficial interest and to submit updated disclosure statements reflecting the changes within 30 days after the change.

 

e)         Space that is not in compliance with accessibility regulations, or is not capable of being brought into compliance with the installation of minimum essential features of accessibility by the time of occupancy, shall not be considered for use.  Each RFI will contain specifications for accessibility.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1040  Purchase Option

 

Initial leases of all space in entire, free-standing buildings shall include an option to purchase exercisable by the OAG, unless the CPO determines that inclusion of a purchase option is not in the OAG's best interest and makes that determination in writing along with the reasons for making that determination.  The determination shall be published in the Auditor General Bulletin.  Leases from governmental units and not-for-profit entities are exempt from the requirements of this Section.

 

Section 500.1050  Rent Without Occupancy

 

Except when deemed by the CPO to be in the best interest of the State, the OAG may not incur rental obligations before having occupancy or possession of the space rented.

 

Section 500.1060  Local Site Preferences

 

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

SUBPART L: PREFERENCES

           

Section 500.1110  Resident Vendor Preference

 

a)         When a contract is to be awarded to the lowest responsible bidder or offeror, a resident bidder or offeror shall be allowed a preference as against a non-resident bidder or offeror from any state that gives or requires a preference to bidders or offerors from that state.  The preference shall be equal to the preference given or required by the state of the non-resident bidder or offeror.  Further, if only non-resident bidders or offerors are bidding, the purchasing agency is within its right to specify that Illinois labor and manufacturing locations be used as a part of the manufacturing process, if applicable.  This specification may be negotiated as part of the solicitation process.  [30 ILCS 500/45-10(a)]

 

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

 

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

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1120  Soybean Oil-based Ink and Vegetable Oil-based Ink

 

Contracts requiring the procurement of offset printing services shall specify the use of soybean oil-based ink or vegetable oil-based ink unless the Procurement Officer determines that another type of ink is required to assure high quality and reasonable pricing of the printed product. This Section does not apply to digital printing services.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.1130  Recycled Supplies

 

When a public contract is to be awarded to the lowest responsible bidder or offeror, an otherwise qualified bidder or offeror who will fulfill the contract through the use of products made of recycled supplies shall be given preference over other bidders or offerors unable to do so, provided that the cost included in the bid of supplies is equal to or less than other bids or offers, unless the use of the product constitutes an undue practical hardship.  [30 ILCS 500/45-20]

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.1140  Recyclable Supplies

 

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

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1145  Environmentally Preferable Procurement

 

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

 

(Source:  Added at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1148  Biobased Products

 

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

 

(Source:  Added at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1150  Correctional Industries

 

a)         The CPO shall make available to all Procurement Officers a listing of the supplies or services available from the Department of Corrections and shall identify those that must be purchased from Corrections.

 

b)         Those items that must be purchased from Corrections may not be procured from any other source without the express written authorization of the CPO.

 

c)         Procurement Officers are authorized to procure from Corrections without seeking competition or giving public notice, but must inform the CPO of all such purchases.

 

Section 500.1160  Qualified Not-for-Profit Agencies for Persons with Significant Disabilities

 

a)         Use

The Procurement Officer may determine to contract with a qualified not-for-profit agency for persons with significant disabilities on the list maintained by the State Use Committee and may do so without notice or competition.

 

b)         Pricing Approval

While notice and competition is not required prior to contracting with qualified not-for-profit agencies for persons with significant disabilities, prices must be reasonable.  Whether a price is reasonable will be determined based upon current market prices, historical prices, prices received by other State agencies for similar supplies or services, the policy of the Code to promote procurements from qualified not-for-profit agencies for persons with significant disabilities, and other such relevant factors.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.1170  Gas Mileage

 

a)         Specifications for the purchase of new passenger automobiles shall require compliance with minimum gas mileage requirements established in Section 45-40 of the Code.  As used in this Section, passenger automobile does not include station wagons, vans, four-wheel drive vehicles, emergency vehicles, or police or fire vehicles.

 

b)         All gasoline-powered vehicles purchased from State funds must be flexible fuel vehicles or fuel efficient hybrid vehicles.  Any vehicle purchased from State funds that is fueled by diesel fuel shall be certified by the manufacturer to run on 5% biodiesel (B5) fuel.

 

c)         The CPO may exempt a procurement from the requirements of subsections (a) and (b) when a demonstrated need has been presented to the CPO in writing and approved by that officer.

 

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

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1180  Small Business

 

a)         Set-Aside

The Procurement Officer may designate as small business set-asides a fair proportion of construction, supply and service contracts for award to small businesses in Illinois.

 

b)         Small Business List

The Procurement Officer may develop its own list, or may use the list maintained by CMS or other appropriate State agency, of responsible vendors that meet the criteria of small business.  Vendors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses shall submit information acceptable to the Procurement Officer verifying that the vendor qualifies as a small business under this Part.  A business that fits the definition of small on the day of bid or proposal opening will be considered small for the duration of the contract.

 

c)         Required Use

If a Procurement Officer wishes to make a procurement covered by a set-aside designation, the solicitation must note responses are limited to those from responsible small businesses.  Bids or proposals received from large businesses will be rejected as nonresponsive.

 

d)         Withdrawal of Set-Aside

If the Procurement Officer determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the Procurement Officer shall reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question.  When a small business set-aside is withdrawn, notification shall be published in the Auditor General Bulletin with an explanation.  After withdrawal of the small business set-aside, the procurement shall be conducted in accordance with the limitations of this Part.

 

e)         Criteria for Small Business

Unless the Procurement Officer provides a definition for a particular procurement that reflects industry characteristics, a small business is one:

 

1)         That is an Illinois business, independently owned and operated.

 

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

 

3)         With annual sales for the most recently ended fiscal year no greater than:

 

A)        $13,000,000 for wholesale business;

 

B)        $14,000,000 for construction business; or

 

C)        $8,000,000 for retail business or business selling services.

 

4)         With no more than 250 employees if a manufacturing business.

 

A)        A manufacturing business shall calculate how many people it employs by determining its average full-time equivalent employment, based on the number of persons employed on a full-time, part-time, temporary or other basis, for its most recently ended fiscal year.

 

B)        If a manufacturing business has been in existence for less than a full fiscal year, its average employment should be calculated for the period through one month prior to the bid or proposal due date.

 

5)         If the business is any combination of retailer, wholesaler or construction business, then the annual sales for each component may not exceed the amounts shown in subsection (e)(3).  For example, a business that is both a retailer and wholesaler may not have total sales exceeding $21,000,000 and the retail component may not exceed $8,000,000 and the wholesale component may not exceed $13,000,000.  If the business is also a manufacturer, in addition to meeting the annual sales requirement, the number of manufacturing employees may not exceed the number shown in subsection (e)(4).

 

6)         When computing the size status of a vendor, the number of employees and annual sales and receipts, as applicable, of the vendor and all affiliates shall be included.  Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or when a third party or parties controls or has the power to control both.  In determining whether concerns are independently owned and operated and whether affiliation exists, consideration shall be given to all appropriate factors, including use of common facilities, common ownership and management and contractual arrangements.  However, a franchise relationship shall not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1190  Contracting with Businesses Owned and Controlled by Minorities, Women and Persons with Disabilities

 

a)         Upon direction of the CPO, the OAG may establish goals and other such preferences for contracting or subcontracting with businesses owned and controlled by minorities, women and persons with disabilities.

 

b)         For purposes of this Section, the individuals claiming ownership and control must own at least 51% of the business.

 

c)         The CPO may refer to the list of businesses that have been certified by CMS or other appropriate agency under the Business Enterprise Act for Minorities, Women, and Persons with Disabilities [30 ILCS 575].

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.1195  Illinois Agricultural Products

 

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

 

(Source:  Added at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1197  Corn-based Plastics

 

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

 

(Source:  Added at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1199  Disabled Veterans

 

It is the goal of the State to promote and encourage the continued economic development of small businesses owned and controlled by qualified veterans and that qualified service-disabled veteran-owned small businesses (referred to as SDVOSB) and veteran-owned small businesses (referred to as VOSB) participate in the State's procurement process as both prime contractors and subcontractors.  [30 ILCS 500/45-57]  Upon direction of the CPO, the OAG may establish goals and other such preferences for contracting or subcontracting with SDVOSB and VOSB that are certified by the Department of Veterans' Affairs and the Department of Central Management Services. 

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

SUBPART M: ETHICS

 

Section 500.1200  Bribery

 

a)         Prohibition

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

 

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

 

2)         has made an admission of guilt of that conduct that is a matter of record but has not been prosecuted for that conduct.

 

b)         Businesses

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

 

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

 

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

 

c)         Conduct on Behalf of Business

For purposes of this Section, when an official, agent, or employee of a business committed the bribery or attempted bribery on behalf of the business and in accordance with the direction or authorization of a responsible official of the business, the business shall be chargeable with the conduct.

 

d)         Certification

Every bid or offer submitted to every contract executed by the State and every subcontract shall contain a certification by the bidder, offeror, potential contractor, contractor, or the subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the chief procurement officer may declare the related contract void if any certifications required by this Section are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid or offer and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. A bidder, offeror, potential contractor, contractor, or subcontractor who makes a false statement, material to the certification, commits a Class 3 felony.  [30 ILCS 500/50-5]

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1210  Felons

 

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

 

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

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1215  Prohibited Bidders and Contractors

 

a)          Unless otherwise provided, no business shall bid, offer, or enter into a contract or subcontract if the business or any officer, director, partner, or other managerial agent of the business has been convicted of a felony under the Sarbanes-Oxley Act of 2002 (PL 107-204) or a Class 3 or Class 2 felony under the Illinois Securities Law of 1953 [815 ILCS 5] for a period of 5 years from the date of conviction. 

 

b)         Every bid and offer submitted to the State, every contract executed by the State and every subcontract shall contain a certification by the bidder, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor, respectively, that the bidder, offeror, potential contractor, contractor, or subcontractor is not barred from being awarded a contract or subcontract under this Section and acknowledges that the chief procurement officer shall declare the related contract void if any of the certifications completed pursuant to this subsection (b) are false.  If the false certification is made by a subcontractor, then the contractor's submitted bid or offer and the executed contract may not be declared void, unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontract's certification was false. [30 ILCS 500/50-10.5]

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1217  Debt Delinquency

 

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

 

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

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1218  Collection and Remittance of Illinois Use Tax

 

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

 

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

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1220  Conflicts of Interest

 

a)         Prohibition

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

 

b)         Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person listed in subsection (a) is entitled to receive more than 7 1/2% of the total distributable income or an amount in excess of the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.[30 ILCS 500/50-13(b)]

 

c)         Combined Interests

It is unlawful for any firm, partnership, association, or corporation, in which any person listed in subsection (a) together with his or her spouse or minor children is entitled to receive more than 15%, in the aggregate, of the total distributable income or an amount in excess of 2 times the salary of the Governor, to have or acquire any such contract or direct pecuniary interest therein.  [30 ILCS 500/50-13(c)]

 

d)         Securities

Nothing in this Section invalidates the provisions of any bond or other security previously offered or to be offered for sale or sold by or for the State of Illinois.[30 ILCS 500/50-13 (d)]

 

e)         Prior Interests

This Section does not affect the validity of any contract made between the State and an officer or employee of the State or member of the General Assembly, his or her spouse, minor child, or other immediate family member living in his or her residence or any combination of those persons if that contract was in existence before his or her election or employment as an officer, member, or employee.  The contract is voidable, however, if it cannot be completed within 365 calendar days after the officer, member, or employee takes office or is employed.  [30 ILCS 500/50-13 (e)]

 

f)         Exceptions

 

1)         Public aid payments.  This Section does not apply to payments made for a public aid recipient.

 

2)         Teaching.  This Section does not apply to a contract for personal services as a teacher or school administrator between a member of the General Assembly or his or her spouse, or a State officer or employee or his or her spouse, and any school district, public community college district, the University of Illinois, Southern Illinois University, Illinois State University, Eastern Illinois University, Northern Illinois University, Western Illinois University, Chicago State University, Governor State University, or Northeastern Illinois University.

 

3)         Ministerial duties.  This Section does not apply to a contract for personal services of a wholly ministerial character, including but not limited to services as a laborer, clerk, typist, stenographer, page, bookkeeper, receptionist, or telephone switchboard operator, made by a spouse or minor child of an elective or appointive State officer or employee or of a member of the General Assembly.

 

4)         Child and family services.  This Section does not apply to payments made to a member of the General Assembly, a State officer or employee, his or her spouse or minor child acting as a foster parent, homemaker, advocate, or volunteer for or in behalf of a child or family served by the Department of Children and Family Services.

 

5)         Licensed professionals.  Contracts with licensed professionals, provided they are competitively bid or part of a reimbursement program for specific, customary goods and services through the Department of Children and Family Services, the Department of Human Services, the Department of Healthcare and Family Services, the Department of Public Health, or the Department on Aging.[30 ILCS 500/50-13(f)]

 

g)         An individual has a direct pecuniary interest in a contract when the individual is owed a payment or otherwise receives a direct financial benefit in conjunction with performance of a contract, including finder's fees and commission payments.

 

h)         Distributable income means the income of a company after payment of all expenses, including employee salary and bonus, and retained earnings, that is distributed to those entitled to receive a share of such income.  In the case of a for-profit corporation, distributable income means "dividends".  When calculating entitlement to distributable income the entitlement shall be determined at the end of the company's most recent fiscal year.

 

i)          Exemptions

If the Procurement Officer finds a conflict of interest under this Section with the vendor selected for award or contract negotiations, the Procurement Officer shall forward to the CPO the name of the vendor and a description of the proposed contract and of the potential conflict, and shall state why an exemption should be granted.  The CPO may exempt named individuals from the prohibitions of this Section when, in his or her judgment, the public interest in having the individual in the service of the State outweighs the public policy evidenced in that Section.  [30 ILCS 500/50-20]  Notice of each exemption shall be published in the Auditor General Bulletin and a copy shall be filed with the Secretary of State and State Comptroller prior to the contract's execution.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1230  Negotiations for Future Employment

 

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

 

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 OAG must act to terminate, or has a definite term of at least three months.

 

Section 500.1235  Environmental Protection Act Violations

 

a)         Unless otherwise provided, no person or business found by a court or the Pollution Control Board to have committed a willful or knowing violation of the Environmental Protection Act [415 ILCS 5] shall do business with the State of Illinois or any State agency or enter into a subcontract from the date of the order containing the finding of violation until 5 years after that date, unless the person or business can show that no person involved in the violation continues to have any involvement with the business. [30 ILCS 500/50-14(a)]

 

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

 

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

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1238  Lead Poisoning Prevention Act Violations

 

Owners of residential buildings who have committed a willful or knowing violation of the Lead Poisoning Prevention Act [410 ILCS 45] are prohibited from doing business with the State of Illinois or any State agency, or subcontracting, until the violation is mitigated.  [30 ILCS 500/50-14.5]

 

(Source:  Added at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1240  Revolving Door Prohibition

 

Chief procurement officers, State purchasing officers, procurement compliance monitors, their designees whose principal duties are directly related to State procurement, and executive officers confirmed by the Senate are expressly prohibited for a period of 2 years after terminating an affected position from engaging in any procurement activity relating to the State agency most recently employing them in an affected position for a period of at least 6 months.  The prohibition includes but is not limited to:  lobbying the procurement process; specifying; bidding; proposing bid, proposal, or contract documents; on their own behalf or on behalf of any firm, partnership, association, or corporation. [30 ILCS 500/50-30]

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1250  Disclosure of Financial Interests and Potential Conflicts of Interest

 

a)         Requirement for Disclosure

 

1)         All bids and offers from responsive bidders, offerors, vendors, or contractors with an annual value of more than $100,000 shall be accompanied by disclosure of the financial interests of the bidder, offeror, potential contractor, or contractor and each subcontractor to be used.  In addition, all subcontracts with an annual value of more than $100,000 shall be accompanied by disclosure of the financial interests of each subcontractor. The financial disclosure of each successful bidder, offeror, potential contractor, or contractor and its subcontractors shall be incorporated as a material term of the contract and shall become part of the publicly available contract or procurement file maintained by the appropriate chief procurement officer.  Each disclosure shall be signed and made under penalty of perjury by an authorized officer or employee on behalf of the bidder, offeror, potential contractor, contractor, or subcontractor. [30 ILCS 500/50-35(a)]

 

2)         Disclosure shall include any ownership or distributive income share that is in excess of 5%, or an amount greater than 60% of the annual salary of the Governor, of the disclosing entity or its parent entity, whichever is less, unless the bidder, offeror, potential contractor, contractor, or subcontractor:

 

A)        is a publicly traded entity subject to Federal 10K reporting, in which case it may submit its 10K disclosure in place of the prescribed disclosure; or

 

B)        is a privately held entity that is exempt from Federal 10K reporting but has more than 100 shareholders, partners or members, in which case it may submit the information that Federal 10K reporting companies are required to report under 17 CFR 229.401 and list the names of any person or entity holding any ownership share that is in excess of 5% in place of the prescribed disclosure.  [30 ILCS 500/50-35(a)]

 

b)         Definitions and General Provisions

 

1)         An "offer from responsive bidders or offerors" means only those offers that are received using an Invitation for Bids or Request for Proposals under Section 500.310 or 500.320.  Disclosures are not required in sole source or emergency procurements.

 

2)         A "parent entity" means an entity that owns 100% of the bidding entity.

 

3)         "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.

 

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

 

5)         "Personal services" shall be any contract for services subject to this Part, including, by way of example, professional and artistic services, repair services, cleaning and guard services, but excludes contracts with employees who are exempt from this Part under Section 500.30(a)(4).

 

6)         "Competitively bid" means a contract let pursuant to Section 500.310 or 500.320.

 

7)         "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.

 

8)         Contractors are under a continuing obligation to promptly supplement disclosures for accuracy throughout the contracting process and throughout the term of any resulting contract.  Contractors with multi-year contracts must submit disclosures on an annual basis.

 

9)         10K Disclosures

 

A)        Any vendor subject to federal 10K reporting requirements may submit its 10K to the OAG in satisfaction of this disclosure requirement.  The vendor may be required to identify the specific sections or parts in the 10K disclosure containing information, if any, pertaining to those who have an ownership interest or an interest in the distributable income of the vendor or its parent, or other information that the vendor knows or reasonably should know identifies a potential conflict of interest with the State.  If the financial interest or conflict of interest information requested by the OAG is not in the 10K, but is in a document referenced in the 10K, or in a document that may be submitted to the SEC in conjunction with or in lieu of the 10K, then that additional documentation shall be provided as well.

 

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

 

C)        In circumstances where a vendor may submit a 10K disclosure in lieu of the specific disclosure requirements and for purposes of the Procurement Officer's duty to consider any conflict or potential conflict of interest that may exist, but that is not subject to specific disclosure requirements of this Part, and that is not personally known by the Procurement Officer, "publicly known or reasonably available to the public" shall consist of information identified by the vendor in the 10K disclosure and any information disclosed pursuant to public review of the 10K disclosure.

 

c)         Form of Disclosure

 

1)         The form of disclosure shall be prescribed by the CPO and must include at least the names, addresses, and dollar or proportionate share of ownership of each individual identified in this Section, their instrument of ownership or beneficial relationship, and notice of any potential conflict of interest resulting from the current ownership or beneficial relationship of each person identified in this Section having in addition any of the following relationships:

 

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

 

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

 

C)        Elective status; the holding of elective office of the State of Illinois, the government of the United States, any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois currently or in the previous 3 years;

 

D)        Relationship to anyone holding elective office currently or in the previous 2 years; spouse, father, mother, son, or daughter;

 

E)        Appointive office; the holding of any appointive government office of the State of Illinois, the United States of America, or any unit of local government authorized by the Constitution of the State of Illinois or the statutes of the State of Illinois, which office entitles the holder to compensation in excess of expenses incurred in the discharge of that office currently or in the previous 3 years;

 

F)         Relationship to anyone holding appointive office currently or in the previous 2 years; spouse, father, mother, son, or daughter;

 

G)        Employment, currently or in the previous 3 years, as or by any registered lobbyist of the State government;

 

H)        Relationship to anyone who is or was a registered lobbyist in the previous 2 years; spouse, father, mother, son, or daughter;

 

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; spouse, father, mother, son, or daughter; who is or was a compensated employee in the last 2 years of any registered election or re-election committee registered with the Secretary of State or any county clerk in the State of Illinois, or any political action committee registered with either the Secretary of State or the Federal Board of Elections.  [30 ILCS 500/50-35(b)]

 

2)        The disclosure required under this Section must also include the name and address of each lobbyist required to register under the Lobbyist Registration Act [25 ILCS 170] and other agent of the bidder, offeror, potential contractor, contractor, or subcontractor who is not identified under subsection (a) and who has communicated, is communicating, or may communicate with any State officer or employee concerning the bid or offer.  The disclosure under this subsection (c)(2) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-1)]

 

3)        The disclosure required under this Section must also include, for each of the persons identified in subsection (c)(1) or (2), each of the following that occurred within the previous 10 years:  suspension or debarment from contracting with any governmental entity; professional licensure discipline; bankruptcies; adverse civil judgments and administrative findings; and criminal felony convictions.  The disclosure under this subsection (c)(3) is a continuing obligation and must be promptly supplemented for accuracy throughout the process and throughout the term of the contract if the bid or offer is successful. [30 ILCS 500/50-35(b-2)]

 

d)         Intent of Disclosure

The disclosure in subsection (c) is not intended to prohibit or prevent any contract.  The disclosure is meant to fully and publicly disclose any potential conflict to the CPO, procurement officers, their designees, and executive officers so they may adequately discharge their duty to protect the State.  [30 ILCS 500/50-35(c)]

 

e)         Determination by Procurement Officer

When a potential for a conflict of interest is identified, discovered, or reasonably suspected it shall be reviewed by the Procurement Officer or the Procurement Officer's designee, who must rule whether to void or allow the contract, subcontract, bid, offer, or proposal weighing the best interest of the State of Illinois.  Any such written determination shall become a publicly available part of the contract, bid, or proposal file. (See Section 50-35(d) of the Code.)

 

f)         Requirements for Reasonable Care and Diligence

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

 

g)         Inadvertent or Accidental Failure to Fully Disclose

Inadvertent or accidental failure to fully disclose shall render the contract, bid, offer, proposal, subcontract, or relationship voidable by the CPO if the CPO deems it in the best interest of the State of Illinois and, at the CPO's discretion, may be cause for barring from future contracts, bids, offers, proposals, subcontracts, or relationships with the OAG for a period of up to 2 years.  [30 ILCS 500/50-35(f)]

 

h)         Intentional, Willful, or Material Failure to Disclose

Intentional, willful, or material failure to disclose shall render the contract, subcontract, bid, offer, proposal, or relationship voidable by the CPO if they deem it in the best interest of the State of Illinois and shall result in debarment from future contracts, subcontracts, bids, offers, proposals, or relationships with the OAG for a period of not less than 2 years and not more than 10 years.  Reinstatement after 2 years and before 10 years must be reviewed and commented upon by the CPO, who must rule in writing whether and when to reinstate.  [30 ILCS 500/50-35(g)]

 

i)          Other Procurements

In addition, all disclosures shall note any other current or pending contracts, bids, offers, proposals, subcontracts, leases, or other ongoing procurement relationships the bidder, offeror, potential contractor, contractor, or subcontractor has with any other unit of State government and shall clearly identify the unit and the contract, offer, proposal, lease, or other relationship.  [30 ILCS 500/50-35(h)]

 

j)          Continuing Obligation

The bidder, offeror, potential contractor, or contractor has a continuing obligation to supplement the disclosure required by this Section throughout the bidding process or during the term of any contract.  [30 ILCS 500/50-35(i)]

 

(Source:  Amended at 47 Ill. Reg. 18442, effective January 1, 2024)

 

Section 500.1260  Reporting Anticompetitive Practices

 

When, for any reason, any vendor, bidder, offeror, potential contractor, contractor, chief procurement officer, State purchasing officer, designee, elected official, or State employee suspects collusion or other anticompetitive practice among any bidders, offerors, potential contractors, contractors, or employees of the State, a notice of the relevant facts shall be transmitted to the appropriate Inspector General, the Attorney General, and the chief procurement officer.  [30 ILCS 500/50-40]

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.1265  Disclosure of Business in Iran

 

a)          Each bid or offer submitted for a State contract, other than a small purchase shall include a disclosure of whether or not the bidder, offeror, or any of its corporate parents or subsidiaries, within the 24 months before submission of the bid or offer had business operations that involved contracts with or provision of supplies or services to the Government of Iran, companies in which the Government of Iran has any direct or indirect equity share, consortiums or projects commissioned by the Government of Iran, or companies involved in consortiums or projects commissioned by the Government of Iran and: 

 

1)         more than 10% of the company's revenues produced in or assets located in Iran involve oil-related activities or mineral extraction activities; less than 75% of the company's revenues produced in or assets located in Iran involve contracts with or provision of oil-related or mineral-extraction products or services to the Government of Iran or a project or consortium created exclusively by that government; and the company has failed to take substantial action; or

 

2)         the company has, on or after August 5, 1996, made an investment of $20 million or more, or any combination of investments of at least $10 million each that in the aggregate equals or exceeds $20 million in any 12-month period, that directly or significantly contributes to the enhancement of Iran's ability to develop petroleum resources of Iran. [30 ILCS 500/50-36]

 

b)         A bid or offer that does not include the disclosure required by subsection (a) may be given a period after the bid or offer is submitted to cure the non-disclosure.  A procurement officer may consider the disclosure when evaluating the bid or offer or awarding the contract.

 

c)          Each Chief Procurement Officer shall provide the State Comptroller with the name of each entity disclosed under subsection (a) as doing business or having done business in Iran.  The State Comptroller shall post that information on his or her official website.

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1267  Lobbying Restrictions

 

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

 

b)         Disclosure

 

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

 

A)        disclose all costs, fees, compensation, reimbursements, and other remunerations paid or to be paid to the lobbyist related to the contract;

 

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

 

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

 

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, in the online Procurement Bulletin.  [30 ILCS 500/50-38(b)]

 

c)         No person or entity shall retain a person or entity required to register under the Lobbyist Registration Act to attempt to influence the outcome of a procurement decision for compensation contingent in whole or in part upon the decision or procurement.  Any person who violates this subsection is guilty of a business offense and shall be fined not more than $10,000.  [30 ILCS 500/50-38(c)]

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1270  Confidentiality

 

Any chief procurement officer, State purchasing officer, designee, executive officer, or State employee  who willfully uses or allows the use of specifications, competitive solicitation documents, proprietary competitive information, contracts, or selection information to compromise the fairness or integrity of the procurement or contract process shall be subject to immediate dismissal [30 ILCS 500/50-45], regardless of personnel rules, any contract, law or other agreement, and may, in addition, be subject to criminal prosecution.

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.1275  Procurement Communications Reporting Requirement

 

a)         Reporting Requirement

 

1)         Any written or oral communication received by a State employee who, by the nature of his or her duties, has the authority to participate personally and substantially in the decision to award a State contract and that imparts or requests material information or makes a material argument regarding potential action concerning an active procurement matter, including, but not limited to, an application, a contract, or a project, shall be reported to the CPO.  These communications do not include the following: 

 

A)        statements by a person publicly made in a public forum;

 

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

 

C)        statements made by an OAG employee to the Auditor General or other employees of the OAG, or to an employee of another State agency who, through the communication, is either:

 

i)          exercising his or her experience or expertise in the subject matter of the particular procurement in the normal course of business, for official purposes, and at the initiation of the OAG; or

 

ii)         exercising oversight, supervisory, or management authority over the procurement in the normal course of business and as part of official responsibilities;

 

D)        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 request for information, request for proposal, request for qualifications, invitation for bid, or a small purchase, sole source, or emergency solicitation, or questions and answers posted to the Auditor General Bulletin to supplement the procurement action, provided that the communications are made in accordance with the instructions contained in the procurement solicitation, procedures, or guidelines;

 

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

 

G)        communications that are part of a formal procurement process as set out by statute, rule, or the solicitation, guidelines, or procedures, including, but not limited to, the posting  of procurement opportunities, the process for approving a procurement or its equivalent, fiscal approval, submission of bids, the finalizing of contract terms and conditions with an awardee or apparent awardee, and similar formal procurement processes. 

 

2)         The reporting requirement does not apply to any communication asking for clarification regarding a contract solicitation so long as there is no competitive advantage to the person or business and the question and answer, if material, are posted to the Auditor General Bulletin as an addendum to the solicitation.

 

3)         The provisions of this Section shall not apply to communications regarding the administration and implementation of an existing contract, except communications regarding change orders or the renewal or extension of a contract.  [30 ILCS 500/50-39(a)]

 

b)         The report required by subsection (a) shall be submitted monthly and include at least the following: 

 

1)         the date and time of each communication;

 

2)         the identity of each person from whom the written or oral communication was received, the individual or entity represented by that person, and any action the person requested or recommended;

 

3)         the identity and job title of the person to whom each communication was made;

 

4)         if a response is made, the identity and job title of the person making each response;

 

5)         a detailed summary of the points made by each person involved in the communication;

 

6)         the duration of the communication;

 

7)         the location or locations of all persons involved in the communication and, if the communication occurred by telephone, the telephone numbers for the callers and recipients of the communication; and

 

8)         any other pertinent information.  [30 ILCS 500/50-39(b)]

 

c)         Additionally, when an oral communication made by a person required to register under the Lobbyist Registration Act is received by a State employee that is covered under this Section, all individuals who initiate or participate in the oral communication shall submit a written report to that State employee that memorializes the communication and includes, but is not limited to, the items listed in subsection (b).  [30 ILCS 500/50-39(c)]

 

d)         The CPO shall make each report submitted pursuant to this Section available on the Auditor General Bulletin within 7 calendar days after receipt of the report.  No trade secrets or other proprietary or confidential information shall be included in any communication reported to the CPO.  [30 ILCS 500/50-39(b)]

 

e)         The reporting requirements shall also be conveyed through ethics training under the State Officials and Employees Ethics Act [5 ILCS 430].  An employee who knowingly and intentionally violates this Section shall be subject to suspension or discharge.

 

f)         For purposes of this Section:

 

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

 

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

 

3)         "Material Argument" means a communication that a reasonable person would believe was made for the purpose of influencing a decision relating to a procurement matter.  "Material argument" does not include general information about products, services, or industry best practices or a response to a communication initiated by an employee of the State for the purposes of providing information to evaluate new products, trends, services, or technologies.  [30 ILCS 500/50-39(g)]

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.1280  Insider Information

 

It is unlawful for any current or former elected or appointed State official or State employee to knowingly use confidential information available only by virtue of that office or employment for actual or anticipated gain for themselves or another person.  [30 ILCS 500/50-50]  Any violation of this Section may result in immediate dismissal, regardless of personnel rules, any contract, law or other agreement.

 

Section 500.1285  Continuing Disclosure; False Certification

 

Every person that has entered into a contract for more than one year in duration for the initial term or for any renewal term shall certify, by January 1 of each fiscal year covered by the contract after the initial fiscal year, to the chief procurement officer of any changes that affect its ability to satisfy the requirements of Article 50 of the Code pertaining to eligibility for a contract award.  If a contractor or subcontractor continues to meet all requirements of Article  50 of the Code, it shall not be required to submit any certification or if the work under the contract has been substantially completed before contract expiration but the contract has not yet expired.  If a contractor or subcontractor is not able to truthfully certify that it continues to meet all requirements, it shall provide with its certification a detailed explanation of the circumstances leading to the change in certification status.  A contractor or subcontractor that makes a false statement material to any given certification required under Article 50 of the Code is, in addition to any other penalties or consequences prescribed by law, subject to liability under the Illinois False Claims Act [740 ILCS 175] for submission of a false claim. [30 ILCS 500/50-2]

 

(Source:  Amended at 42 Ill. Reg. 3193, effective February 16, 2018)

 

Section 500.1290  Other Violations

 

Any OAG employee who willfully violates or allows the violation of this Part is subject to immediate dismissal, regardless of personnel rules, any contract, law or other agreement.

SUBPART N: PROTESTS AND REMEDIES

 

Section 500.1300  Suspension and Debarment

 

a)         Application

This Section applies to all debarments or suspensions of vendors from consideration for award of contracts.  For purposes of this Section, references to "vendors" includes subcontractors.

 

b)         The CPO may suspend a vendor from doing business with the OAG, or from providing specific types of supplies or services.  A suspension may be issued for cause for a period of up to 10 years upon a showing the contractor or subcontractor violated any law governing the procurement transaction or this Part, or failed to conform to specifications or terms of delivery.

 

c)         When the CPO finds cause exists for suspension or debarment, a notice of suspension or debarment, including a copy of that determination, shall be sent to the vendor. Offers will not be solicited from the vendor and, if received, will not be considered during the period of suspension or debarment.

 

d)         The CPO may suspend a vendor for a period of time commensurate with the seriousness of the offense, but for no more than 10 years.  The suspension will be effective 7 calendar days after receipt of notice unless, an objection is filed.  If an objection is filed, the suspension shall not become effective until the evaluation of the objection is completed.

 

e)         The CPO may debar a vendor.  Debarment is the permanent suspension of a vendor from doing business with the OAG.  A debarment may only take place in those instances involving bribery or attempted bribery of a State of Illinois officer or employee, or as otherwise allowed or required by law.  Offers received from the debarred vendor or proposing the use of a debarred subcontractor will not be considered as responsive.  The debarment will be effective 7 calendar days after receipt of notice, unless an objection is filed.  If an objection is filed, the debarment shall not become effective until the evaluation of the objection is completed.

 

f)         The CPO shall post the public record of suspensions and debarments that are currently in effect in the Auditor General Bulletin.

 

g)         A vendor objecting to the suspension or debarment shall do so in writing, detailing why the action is not valid and providing any documentation to support that position.  The vendor may request a hearing.  This hearing shall be conducted in accordance with Section 500.1340.

 

h)         The CPO shall maintain a master list of all suspensions and debarments.   The master list shall retain information concerning suspensions and debarments as public records.  These records will be maintained for a period of at least 3 years following the end of the suspension or debarment.  This public information may be considered in determining responsibility.

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.1310  Resolution of Contract Controversies (Repealed)

 

(Source:  Repealed at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.1320  Violation of Law or Rule

 

a)         Determination that Solicitation or Award Violates Law

If the CPO finds that the solicitation or proposed award is in violation of statute or rule, the CPO may cancel the solicitation or proposed award, or make modifications to correct the violation, if such correction may be legally accomplished.

 

b)         Determination that Contract Violates this Part

 

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 and affirmed, provided the CPO determines that ratification is in the best interests of the OAG.  If the contract is ratified and affirmed, it shall be without prejudice to the State's rights to any appropriate damages.

 

2)         If, during the term of a contract, the OAG determines that the contractor is delinquent in the payment of debt as set forth in Section 500.1217 of this Part, the OAG may declare the contract void if it determines that voiding the contract is in the best interests of the State. 

 

3)         If, during the term of a contract, the OAG determines that the contractor is in violation of Section 500.1215 of this Part, the OAG shall declare the contract void.

 

4)         If, during the term of a contract, the OAG learns from an annual certification or otherwise determines that the contractor no longer qualifies to enter into State contracts, the CPO may declare the contract void if it determines that voiding the contract is in the best interests of the State.

 

5)         If, during the term of a contract, the CPO learns from an annual certification or otherwise determines that a subcontractor subject to this Part no longer qualifies to enter into State contracts, the CPO may declare the related contract void if it determines that voiding the contract is in the best interests of the State. However, the related contract shall not be declared void unless the contractor refuses to terminate the subcontract upon the State's request after a finding that the subcontractor no longer qualifies to enter into State contracts.  [30 ILCS 500/50-60(e)]

 

c)         Effect of Declaring a Contract Null and Void

In all cases in which a contract is voided, the OAG shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract.

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.1330  Protests

 

a)         Procurement-Related Protests Allowed

 

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

 

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

 

b)         Protest Review Officer

The CPO may act as the Protest Review Officer (PRO) or may appoint one or more Protest Review Officers to consider the procurement-related protests and make a recommendation to the CPO for resolution of the protest.  The CPO may adopt the recommendation or take other action.

 

c)         Submission of Protest

 

1)         A protesting party must submit a protest in writing to the PRO identified in the solicitation document or, in the absence of any designation, to the CPO.

 

2)         The protest must be physically received by the PRO at the location specified.  A postmark or other carrier mark prior to the due date and time is not sufficient to show physical receipt.  Fax and email qualify as writing, but the PRO does not guarantee receipt using those means.

 

A)        In regard to the solicitation notice or solicitation document including specifications, a protest must be received within 14 calendar days after the date the solicitation was posted to the Auditor General Bulletin and must be received by the PRO at the designated address before the date for opening bids or proposals.

 

B)        In regard to rejection of individual bids or proposals or awards, the protest must be received by close of business no later than 14 calendar days after the protesting party knows or should have known of the facts giving rise to the protest to ensure consideration and, in any event, must be received before execution of the applicable contract.

 

3)         Any notice posted to the Auditor General Bulletin establishes the "known or should have known" date for the subject matter of the notice.

 

4)         Protests must be clearly marked as protests on the delivery container, the fax cover sheet or the e-mail subject line.

 

5)         The written protest shall include at a minimum the following:

 

A)        the name and address of the protesting party;

 

B)        identification of the procurement and, if a contract has been awarded, its number or other identifier;

 

C)        a statement of reasons for the protest specifically identifying any alleged violation of a procurement statute, a procurement rule, or the solicitation itself, including the evaluation and award (conclusions without supporting facts and arguments may not be sufficient);

 

D)        supporting exhibits, evidence, or documents to substantiate any claims unless not available within the filing time, in which case the expected availability date shall be indicated; and

 

E)        specific relief sought.

 

d)         Requested Information; Time for Filing

The protesting party must supply any additional information requested by the PRO within the time periods set in the request.  If the protesting party fails to comply with this request, the PRO shall consider the protest on the basis of available information or may deny the protest.

 

e)         Stay of Procurements During Protest

Unless the CPO determines the needs of the OAG require an immediate execution of a contract, the following apply:

 

1)         When a protest has been timely filed and before an award has been made, the Procurement Officer shall make no award of the contract until the protest has been resolved.

 

2)         If timely received but after award, the award shall be stayed without penalty to the State.

 

f)         Resolution

The CPO will resolve the protest by means of a written determination.  The resolution may include affirming the OAG's initial decision, in whole or in part, or revoking the OAG's decision in whole or in part.  The CPO will resolve the protest as expeditiously as possible after receiving all relevant, requested information.

 

g)         Effect of Judicial or Administrative Proceedings

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

 

(Source:  Amended at 39 Ill. Reg. 3561, effective March 1, 2015)

 

Section 500.1340  Hearing Procedures

 

a)         General

Any hearing required or offered in this Part shall be conducted in accordance with the procedures within this Section.

 

b)         Informal Process

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.

 

c)         Hearing Officers

 

1)         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.

 

2)         The Hearing Officer may require that the Procurement Officer attend the hearing or be part of the Hearing Panel.

 

3)         The Hearing Officer will hear and consider information presented by interested persons and make a recommendation to the CPO regarding the validity of the determination of the subject matter of the hearing.

 

4)         The Hearing Officer shall be responsible for the orderly conduct of the hearing by exercising discretion in:

 

A)        Scheduling, starting and ending the hearing;

 

B)        Setting the order of activities;

 

C)        Setting reasonable time limits for oral statements;

 

D)        Resolving any conflicts that may arise during the hearing.

 

5)         The Hearing Officer may cancel a hearing at any time prior to commencing a hearing, including making an announcement at the scheduled hearing date, time and location, but shall give as much advance notice as possible under the circumstances.  A notice confirming the cancellation and any reschedule information will be published in the Auditor General Bulletin.

 

6)         The Hearing Officer may change a scheduled hearing date, time or location prior to commencing a hearing by posting a notice outside the hearing room and by posting a notice to the Auditor General Bulletin.  The hearing should be continued to the next practicable date.  In setting the next practicable hearing date, the Hearing Officer may take into consideration the schedule of the parties, the hardship to witnesses or the general public, travel and logistical considerations and any other matters that would affect public participation in the hearing.

 

7)         After commencing a hearing, the Hearing Officer may reconvene a hearing by announcing the new date and time at the hearing and posting the new date and time outside the hearing room.  The hearing shall be continued to the next practicable date in accordance with subsection (c)(6).

 

d)         Notice of Hearing

 

1)         Notice that a hearing will be held to receive testimony or written comments regarding the subject matter identified in the notice will be published in the Auditor General Bulletin.  The hearing notice shall be published in the Auditor General Bulletin as soon as practicable.

 

2)         The hearing may be held as soon as the first working day following the end of the notice period.  The notice shall contain the following information and may describe more than one matter to be considered at the same hearing:

 

A)        The name of the affected parties (e.g., State agency and vendor);

 

B)        A description of the subject matter;

 

C)        A justification for the action under review;

 

D)        Requirements for testifying or submitting written comments;

 

E)        Hearing contact information;

 

F)         The date, time and location of the hearing;

 

G)        A statement that all written comments and oral testimony shall be considered public record and open to review by the public;

 

H)        A statement of, or reference to, this Section.

 

e)         Written Comments and Oral Testimony

            Interested parties wishing to comment for or against the determination may do so in writing alone, may testify in person and may submit written comments reflecting the oral testimony.

 

1)         Written Comments

 

A)        Submission of Written Comments.  Written comments are requested by the hearing registration deadline, shown in the Auditor General Bulletin notice, to aid the Hearing Officer in preparing for the hearing.  However, all written comments received by the hearing date will be considered.

 

B)        Incorporation of Written Comments.  If the Hearing Officer has received any written comment, the name and affiliation of the person submitting the comment shall be stated for the record and the written comments shall be incorporated into the record.  In addition, the Hearing Officer may read excerpts from or summarize the basic points of the written comments for the record.

 

2)         Oral Testimony

 

A)        Advance Registration.  Any person who wishes to testify is requested to register with the Hearing Contact.  Advance registration is requested to allow for efficient scheduling and to ensure the hearing room has sufficient capacity for those who wish to testify.  Those who register in advance will be heard first on the matter for which they registered.  The Hearing Officer has discretion to limit testimony for the efficiency of the hearing.

 

B)        Written Copy of Testimony Requested.  Written comments reflecting proposed oral testimony are requested by the hearing registration deadline shown in the Auditor General Bulletin notice to allow the Hearing Officer time to prepare for the hearing.  A person testifying may submit written comments along with the testimony.  The Hearing Officer may request a written copy of the oral testimony.

 

C)        Witness Slip Required.  Each person providing oral testimony must complete a witness slip and provide it to the Hearing Officer as instructed.

 

D)        Duration of Testimony.  Each interested party shall have a reasonable period of time to present his or her position based on the complexity of the issue and the press of other business.

 

f)         Sole Source and Emergency Contract Extensions − Supplemental Provisions

 

1)         The notice, including attachments, as shown in the Auditor General Bulletin represents the position of the OAG.  The Hearing Officer shall have the notice placed into the record.  A copy of the notice will be posted in the hearing room.

 

2)         The Procurement Officer shall attend the hearing if any person registers in advance to testify in opposition to the sole source or emergency contract extension determination.  Attendance may be by video or audio.  The Procurement Officer shall respond to questions of the Hearing Officer.

 

3)         The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative.  The Hearing Officer may allow parties to engage in dialogue and allow follow-up questions and answers as needed to ensure full understanding of the matter.  The Hearing Officer is not required to respond to substantive questions at the hearing nor make commitments regarding the content of his or her recommendation.

 

g)         Suspension and Debarment − Supplemental Provisions

A party who receives notice of suspension or debarment may request a hearing to protest the suspension or debarment action. The hearing will be conducted in accordance with this Section and the following additional provisions shall apply.

 

1)         The Hearing Officer may ask questions or request further written information in response to written comments or testimony or at the Hearing Officer's initiative.  The Hearing Officer is not required to respond to substantive questions at the hearing or make commitments regarding the content of his or her recommendation.

 

2)         Both the OAG and the vendor affected by a suspension or debarment may, at the discretion of the Hearing Officer, bring in witnesses to present testimony regarding the facts or circumstances that led to the determination to suspend or debar.

 

3)         In addition to responding to questions of the Hearing Officer, the witnesses shall respond to questions by the affected vendor if, at the discretion of the Hearing Officer, the questions are allowed.

 

A)        The Hearing Officer may allow questions when the subject matter of the question is relevant and the questioning will not unnecessarily delay the proceedings.

 

B)        The Hearing Officer may deny questions when the subject matter seeks only to unnecessarily embarrass the witness or delay the proceedings.

 

h)         Recommendation

After conclusion of the hearing, the Hearing Officer shall review the OAG's position, any information obtained from public comment (written or oral), applicable laws, rules and written policies, and other information deemed relevant.

 

i)          Decision of the CPO

 

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 OAG's decision.

 

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.

 

j)          Notice of Decision

 

1)         The decision of the CPO shall be provided to the impacted parties.  A copy of the decision shall be posted to the Auditor General Bulletin.

 

2)         Upon posting notice of a decision upholding the determination, the OAG may take action to have the contract executed.

 

k)         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 upon request.

 

(Source:  Added at 37 Ill. Reg. 3741, effective April 1, 2013)

SUBPART O: GOVERNMENTAL JOINT PURCHASING

 

Section 500.1400  General

 

In an effort to make the procurement process more efficient, State and other governmental units (including not-for-profit entities authorized by law to participate in joint purchasing) may agree to utilize each others' procurement contracts.  This authority is governed by this Subpart and the Governmental Joint Purchasing Act [30 ILCS 525].

 

Section 500.1410  No Agency Relationship

 

In any joint procurement situation, the governmental unit must issue its own purchase order, accept its own deliveries and make its own payments.  The State of Illinois shall not have any obligation to the vendor for payment of orders placed by other governmental units.

SUBPART P: MISCELLANEOUS PROVISIONS OF GENERAL APPLICABILITY

 

Section 500.1500  Severability

 

If any provision of this Part or any application of it to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or application, and to this end the provisions of this Part are declared to be severable.

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1510  Finality of Determinations

 

Determinations made by the OAG under this Part are final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.

 

Section 500.1520  Government Furnished Property

 

If the OAG provides any property to the vendor in furtherance of the contract, such property shall remain the property of the State but may be consumed by the vendor if necessary to complete the contract.  Vendor will issue a receipt for the property and will be responsible for its safekeeping and return of unused property to the State.

 

Section 500.1530  Inspections

 

a)         Inspection of Plant or Site

The OAG may enter a vendor's or subcontractor's plant or place of business to:

 

1)         inspect supplies or services for acceptance by the State;

 

2)         audit the books and records of any vendor or subcontractor;

 

3)         investigate an action to debar or suspend a person from consideration for award of contracts pursuant to this Part;

 

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)         accomplishing any other purpose permitted by law.

 

b)         When an inspection is made in the plant or place of business of a vendor or subcontractor, the vendor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing.

 

c)         Inspection or testing of supplies and services performed at the plant or place of business of any vendor or subcontractor shall be performed so as to not unreasonably delay the work of the vendor or subcontractor.

 

(Source:  Amended at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.1540  Records and Audits

 

a)         Retention of Books and Records

 

1)         Books and records that relate to performance of a State contract, including subcontracts, and that support amounts charged to the State, shall be maintained:

 

A)        by a contractor, for a period of three years from the later of the date of final payment under the prime contract or completion of the contract;

 

B)        by a subcontractor, for a period of three years from the later of the date of final payment under the subcontract or completion of the subcontract; and

 

C)        by a contractor and subcontractor for such longer period of time as is necessary to complete ongoing or announced audits.  The three year period shall be extended for the duration of any audit in progress at the time of that period's expiration.

 

2)         Failure to maintain the books and records required by this Section shall establish a presumption in favor of the State for the recovery of any funds paid by the State for which required books and records are not available.

 

b)         Contract Audit

 

1)         Types of Contracts Audited.  The type of contract under which books and records should be audited is that in which price is based on costs or is subject to adjustment based on costs, or that in which auditing would be appropriate to assure satisfactory performance, such as a time and material contract.

 

2)         Situations in which an audit may be warranted include but are not limited to when a question arises in connection with:

 

A)        the financial condition, integrity, and reliability of the contractor or subcontractor;

 

B)        any prior audit experience;

 

C)        the adequacy of the contractor's or subcontractor's accounting system;

 

D)        the number or nature of invoices or reimbursement vouchers submitted by the contractor or subcontractor for payment;

 

E)        the use of federal assistance funds;

 

F)         the fluctuation of market prices affecting the contract; or

 

G)        any other situation when the Procurement Officer finds that such an audit is necessary for the protection of the State's best interest.

 

(Source:  Amended at 35 Ill. Reg. 5307, effective April 1, 2011)

 

Section 500.1545  Taxes, Licenses, Assessments and Royalties

 

a)         The contractor shall pay all current and applicable city, county, State and federal taxes, licenses or assessments, including federal excise taxes, due on the performance of any contract, including, without limiting the foregoing, those required by the Federal Insurance Contribution Act (26 USC 3101 et seq.), the Federal Unemployment Tax Act (26 USC 3301 et seq.) and the State Unemployment Insurance Act [820 ILCS 405], together with all royalties due for any proprietary items.  The contractor is exclusively liable for the payment of taxes to the respective governments.  In the event the taxes, licenses, assessments or royalties, or any part thereof, are in the first instance charged to the OAG, the contractor shall, upon timely demand of the OAG, pay the OAG the amount of the tax, license, assessment or royalty due, plus all penalties that may have accrued.

 

b)         The OAG is exempted by Section 3-5 of the Use Tax Act [35 ILCS 105/3-5] from paying any of the taxes imposed by that Act, and sales to the OAG are exempt by Section 2-5(11) of the Retailers' Occupation Tax Act [35 ILCS 120/2-5(11)] from any of the taxes imposed by that Act.  The OAG will provide its exemption numbers to vendors in order to receive an exemption from tax when making purchases of tangible personal property.  Contractors making purchases from vendors of tangible personal property that will be incorporated into real estate owned by the OAG must present vendors with the OAG's exemption number and other required documentation in order to receive an exemption from tax.

 

c)         Offerors must not include in their prices any allowance for payment under Federal Excise Tax if the OAG is exempt from those taxes.  If an order or contract is awarded for the purchase of an item that is subject to Federal Excise Tax, the OAG will furnish the vendor with an exemption certificate upon request.

 

(Source:  Added at 37 Ill. Reg. 3741, effective April 1, 2013)

 

Section 500.1550  No Waiver of Sovereign Immunity

 

Nothing in this Part shall be deemed to be a waiver of sovereign immunity.