AUTHORITY: Implementing the Illinois Procurement Code [30 ILCS 500], Governmental Joint Purchasing Act [30 ILCS 525], Section 2705-600 of the Department of Transportation Law [20 ILCS 2705], and the Public Private Agreements for the Illiana Expressway Act [605 ILCS 130] and authorized by Section 5-25 of the Illinois Procurement Code [30 ILCS 500], Section 2 of the Governmental Joint Purchasing Act [30 ILCS 525], Section 2705-600(7) of the Department of Transportation Law [20 ILCS 2705], Section 25-101 of the Electronic Commerce Security Act [5 ILCS 175], and Section 15(a) of the Public Private Agreements for the Illiana Expressway Act [605 ILCS 130].

SOURCE: Adopted by emergency rulemaking at 22 Ill. Reg. 11602, effective July 1, 1998, for a maximum of 150 days; adopted at 22 Ill. Reg. 21060, effective November 25, 1998; emergency amendment at 29 Ill. Reg. 7832, effective May 12, 2005, for a maximum of 150 days; emergency expired October 8, 2005; amended at 29 Ill. Reg. 18147, effective October 19, 2005; recodified, pursuant to PA 96-795, from Department of Transportation, 44 Ill. Adm. Code 660, to Chief Procurement Officer for Department of Transportation, 44 Ill. Adm. Code 6, at 35 Ill. Reg. 10158; amended at 35 Ill. Reg. 16518, effective September 30, 2011; amended at 36 Ill. Reg. 230, effective December 21, 2011; expedited correction at 36 Ill. Reg. 14883, effective December 21, 2011; amended at 37 Ill. Reg. 5764, effective April 19, 2013; amended at 37 Ill. Reg. 15878, effective September 27, 2013; amended at 37 Ill. Reg. 19098, effective November 15, 2013; recodified Title of the Part at 39 Ill. Reg. 5903; amended at 40 Ill. Reg. 6693, effective April 7, 2016; amended at 44 Ill. Reg. 6222, effective April 8, 2020; Subparts C and K recodified at 44 Ill. Reg. 8590.

SUBPART A: GENERAL

 

Section 6.10  Authority

 

a)         The Chief Procurement Officer (CPO) is established in the Illinois Procurement Code (Code) [30 ILCS 500] as the person appointed by the Secretary of Transportation with the consent of the majority of the members of the Executive Ethics Commission for all construction, construction-related and construction support services, operation of any facility, and the provision of any construction or construction-related service or activity committed by law to the jurisdiction of the Illinois Department of Transportation (Department), including the direct or reimbursable expenditure of all federal funds for which the Department is responsible or accountable for the use thereof in accordance with federal law, regulations or procedure.  The CPO has the authority to appoint State Purchasing Officers (SPOs) to carry out the responsibility established in the Code.  (See Sections 1-15.15 and 10-10 of the Code.)

 

b)         With respect to construction, construction-related, and construction support services, the Department is charged by law with the responsibility for the construction, improvement, maintenance and operation of the State Highway System; the rehabilitation, improvement and construction of rail facilities; and the construction, improvement and maintenance of air navigation facilities either on behalf of the State or as agent for units of local government empowered to operate air navigation facilities.  In addition, the Department may let contracts for highway construction on highway systems under the jurisdiction of local highway authorities as a condition of the receipt of federal-aid funds or as otherwise provided by law.

 

c)         Procurements undertaken by the Department, as a construction agency and purchasing agency, and subject to the Code will be accomplished in accordance with this Part or the standard procurement rules adopted by the Chief Procurement Officer for General Services (CPO-GS) (see 44 Ill. Adm. Code 1) as indicated in the notice of the relevant procurement.  All other procurements subject to the Code and committed to the authority of other Chief Procurement Officers will be conducted in accordance with the rules adopted by those Chief Procurement Officers.  Procurements subject to the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535] will be conducted, in all aspects and procedures, including but not limited to prequalification, publication, evaluation, selection, contract formation and amendment, and performance evaluation, in accordance with the Department's rules promulgated at 44 Ill. Adm. Code 625.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.20  Policy and Application

 

a)         Policy

All Department contract procurements will be accomplished in the most economic and expeditious manner consistent with the principles and practices established in the Code.  It is the policy of the CPO for the Department that all activities of the appointed SPOs and other designees related to the procurement process maximize the value of the expenditure of public funds in procuring contracts, and that those appointed and designated act in a manner that maintains public trust in the integrity of the process.

 

b)         Application

This Part does not apply to intergovernmental agreements and contracts; grants; purchase of care agreements; collective bargaining agreements; purchase of real estate; contracts necessary to prepare for anticipated litigation, enforcement actions, or investigations; and utility and railroad cost reimbursement agreements.  (See Section 1-10(b) of the Code.)

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.30  Purpose and Policy Interpretations

 

This Part is promulgated to guide the CPO and appointed SPOs in implementing the procurement practices applicable to contract procurement established in the Code.  All policy and operational interpretations will be made in a manner so as to secure the commercial needs of the State, to protect, safeguard and maintain the integrity of the procurement process, and to maximize the value of the expenditure of public funds.  This Part is intended and designed to achieve practical, standard procedural uniformity for procurement undertaken by the CPO and appointed SPOs for the Department.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.40  Definitions

 

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

 

"Act" – The Illinois Governmental Joint Purchasing Act [30 ILCS 525].

 

"Amendment" – A written agreement signed by both parties, including a change order, that alters the terms of an existing contract.

 

"Bid" – An offer made by a bidder in response to a contract item advertised in an Invitation for Bids.

 

"Bidder" – Any person or entity that in fact submits a bid.

 

"Change Order" – A change in a contract term, other than as specifically provided for in the contract, which authorizes or necessitates any increase or decrease in the cost of the contract or the time for completion for procurements subject to the jurisdiction of the Chief Procurement Officers appointed pursuant to Section 10-20.  (Section 1-15.12 of the Code)

 

"Chief Procurement Officer" or "CPO" − The person appointed under Section 1-15.15(2) of the Code.

 

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

 

"Construction Agency" – The Illinois Department of Transportation for construction or maintenance of roads, highways, bridges and airports as an agency that enters into construction contracts as authorized by law or by delegation from the CPO.  (See Section 1-15.25 of the Code.)

 

"Construction-related Services" – Those services including design, layout, inspection, support, feasibility or location study, research, development, planning, or other investigative study undertaken by a construction agency concerning construction or potential construction.  (Section 1-15.20 of the Code)

 

"Construction Support" – All equipment, supplies, and services that are necessary to the operation of a construction agency's construction program. Construction Support does not include construction-related services.  (Section 1-15.20 of the Code)

 

"Contract" – In addition to the definition of contract set forth in Section 1-15.30 of the Code, a contract is the written agreement entered into at the discretion of the SPO between the Department and the contractor comprising such documents as set forth in each individual agreement, including change orders, contract adjustments, and renewals, and setting forth the obligations of the parties for the performance of the contract.

 

"Contract Adjustment" – A written price adjustment that adds to or deducts from a contract in accordance with provisions included in the original contract, including but not limited to increases or decreases in quantities, incentives, changed conditions and the addition of missing pay items called for in the specifications.

 

"Contractor" − Any person, firm, corporation, organization, partnership or association, however organized, and its affiliates, including its owners, directors, officers, partners, managers, key employees and others engaged in primary managerial or supervisory positions.

 

"Day" – A calendar day.

 

"Department" – The Illinois Department of Transportation.

 

"Electronic Procurement" – Conducting all or some of the procurement function over the internet.  (Section 1-15.40 of the Code)

 

"Emergency Statement" – The statement filed by the CPO with the Procurement Policy Board and the Auditor General setting forth the actual or estimated amount expended, the name of the contractor involved, and the conditions and circumstances requiring the emergency procurement.  (See Section 20-30(c) of the Code.)

 

"Emergency Contract" – The initial written agreement for an emergency procurement.

 

"Germane" – In relationship to the modification, alteration or amendment of the terms of a contract by change order, the term "germane" means a change that is related to the original terms of the contract but that is not so substantial a departure from the original as to constitute a new contract.

 

"Governmental Unit" – The State of Illinois, any State agency as defined in Section 1-15.100 of the Illinois Procurement Code, officers of the State of Illinois, any public authority that has the power to tax, or any other public entity created by statute. (Section 1-15.47 of the Act)

 

"Master Contract" – A definite or indefinite quantity or requirements contract awarded in accordance with the Procurement Code, against which subsequent orders may be placed to meet the needs of the Department.  A master contract may be for use by the Department or for multiple State purchasing entities and other entities as authorized under the Governmental Joint Purchasing Act.  (Section 1-15.47 of the Code)

 

"Multiple Award" – An award that is made to 2 or more bidders or offerors for similar supplies, services, or construction-related services.  (Section 1-15.48 of the Code)

 

"Multi-year Contract" – A multi-year contract is a contract with a time of performance of more than 12 months.

 

"No-cost Contract" – A contract in which the State of Illinois does not make a payment to, or receive a payment from, the vendor, but the vendor has the contractual authority to charge an entity other than the State of Illinois for supplies or services at the State's contracted rate to fulfill the State's mandated requirements.  (Section 1-15.49 of the Code)

 

"Offerors" – For purposes of this Part, includes only persons or entities submitting proposals that are acceptable or potentially acceptable.  The term does not include persons or entities who submitted unacceptable proposals.

 

"Participant Procuring Entity" – Any entity, including any state, that actively contributes to the procurement, such as assisting in the development of specifications, being a member of the evaluation committee, being a required approver of the proposed award, or engaging in other similar activities that assist with a procurement.

 

"Piggyback Contract" – A form of cooperative purchasing through which the Department is extended the pricing and terms of a contract entered into by another state, another state agency or public department of this or any other state, the federal government, or a group purchasing organization.

 

"PPB" – The Procurement Policy Board created by Section 5-5 of the Code.

 

"Procurement Compliance Monitor" or "PCM" − The person appointed under Section 10-15 of the Code.

 

"Proposal" – A response to a Request for Proposals.

 

"Purchasing Agency" –  A State agency that enters into a contract at the direction of a State purchasing officer or a chief procurement officer. (See Section 1-15.70 of the Code.)

 

"Renewal" – An agreement between the parties to a contract to authorize an additional contract period under the terms and conditions of the renewal provision in the original contract.

 

"Responsible" – The capability, integrity and reliability of a bidder, offeror or contractor that, in all respects, will assure good faith performance to undertake and complete fully the requirements of a contract.

 

"Responsive" – In the context of bidding procedures, the compliance in all meaningful, material respects with the Invitation for Bids.

 

"Request for Information" or "RFI" – The process of requesting information from interested parties to aid the State in decision making.  An RFI is not a procurement method and does not result directly in the award of a contract.

 

"Satisfactory Evidence of Compliance" – A bidder's certification or other assurance of compliance in the contract bid proposal will constitute satisfactory evidence of compliance and will allow a bidder to be considered a responsible bidder on a construction contract under Section 30-22 of the Code.

 

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

 

"Special Provisions" – Additions and revisions to the Standard Specifications for Road and Bridge Construction and the Supplemental Specifications and Recurring Special Provisions (see the Department's website at http://www.idot.illinois.gov/home/resources/Manuals/Manuals-and-Guides) applicable to an individual contract.

 

"Specifications" – The body of directions, provisions, and requirements for performance of prescribed work.  Specifications include and may be referred to as the Standard Specifications, which is a Department publication of specifications approved for general application and repetitive use.

 

"State Purchasing Officer" or "SPO" – The person appointed under Section 10-10 of the Code.

 

"Subcontract" – A contractual agreement between a person or entity and a person or entity who has a contract subject to the Code and this Part, pursuant to which the subcontractor assumes obligation for performing specified work.  (See Section 1-15.107 of the Code.) 

 

"Subcontractor" – A person or entity that enters into a contractual agreement with a total value of $50,000 or more with a contractor who has a contract subject to the Code.  (See Section 1-15.108 of the Code.)

 

"Supplemental Specifications" – Additions and revisions to the Department's Standard Specifications.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

SUBPART B: PUBLICATION OF PROCUREMENT INFORMATION

 

Section 6.50  Transportation Procurement Bulletin

 

a)         The CPO, in consultation with the Department, possesses the rights to, and is the authority responsible for, publishing the Department's volume of the Illinois Procurement Bulletin.  The Department's volume is entitled the "Transportation Procurement Bulletin" (Bulletin).  (See Section 15-1 of the Code.)

 

b)         The Bulletin is the published source for all Department procurement actions, notices and other information relevant to Department procurement activities undertaken pursuant to this Part, including but not limited to contracts offered in the Invitation for Bids, Requests for Proposals, other methods of source selection, contracts awarded, change orders, emergency purchases and sole source procurements.

 

c)         The Bulletin may be published in subparts designed to enhance and focus the ability of users to find information relevant to the user's interest.

 

d)         The Bulletin or any subpart thereof will be published or updated at least once each month but may be updated more frequently. (See Section 15-15 of the Code.)

 

e)         Notice of all awarded contracts, including renegotiated contracts and change orders, will be posted on the Department's website the next business day.  Notice will be posted and published in the Bulletin and will include the following:

 

1)         the name of the successful responsible bidder or offeror;

 

2)         the contract price;

 

3)         the number of unsuccessful responsive bidders; and

 

4)         any other disclosures, such as emergency purchase disclosures or any disclosure required under the Code.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.55  Required Notices

 

a)         Notice of all awarded contracts entered into by the Department pursuant to Subpart D will be published in the Bulletin.

 

b)         Notice of all solicitations are published in the Bulletin pursuant to Subpart D.

 

c)         Notice of contracts let are published in the Bulletin pursuant to Subpart D.

 

d)         Notice of contract renewals and change orders are published in the Bulletin pursuant to Subpart F.

 

e)         The CPO or SPO will provide notice of emergency contracts and any hearings to extend any emergency contract in the Bulletin pursuant to Subpart C.

 

f)         The CPO will provide a written description of the intent to enter into a sole source contract, along with a description of the item to be procured and the intended sole source contractor, in the Bulletin prior to entering into the sole source contract.  The notice will be posted at least 14 days prior to the sole source hearing pursuant to Subpart C.

 

g)         Notice of exempt contracts as required by Section 1-10 of the Code.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.60  Subscription Fees

 

The Department reserves the right to charge subscription fees in accordance with Section 15-15 of the Code.  The Bulletin will be made available without charge to prequalified bidders, registered subcontractors, and offerors, and to public libraries within Illinois expressing interest.  Access to detailed information contained in the Bulletin or any subpart may require additional fees.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.70  Direct Solicitation

 

Publication of the Bulletin or any subpart will not prohibit direct solicitation in addition to publication in order to enhance competition or interest of prospective contractors in particular procurements.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

SUBPART C: METHODS OF PROCUREMENT AND SOURCE SELECTION

 

Section 6.80  Competitive Sealed Bids

 

Except for those circumstances and methods described in Sections 6.90, 6.100, 6.110, 6.120, and 6.122, all Department contracts will be procured by competitive sealed bidding in accordance with Section 20-10 of the Code and this Part.  (See Section 20-5 of the Code.)

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.90  Competitive Sealed Proposals

 

a)         Department contracts may be procured by competitive sealed proposals when the Department determines that competitive sealed bidding is either not practicable or not advantageous to the State.  (See Section 20-15(a) of the Code.)

 

b)         The determination to use competitive sealed proposals will be made in writing and provided to the CPO on either a contract-by-contract or a category of contracts basis.

 

1)         "Practicable" Distinguished From "Advantageous."  As used in this Subpart, the term "practicable" means that which may be accomplished or put into practical application, and "advantageous" means an assessment of what is in the State's best interest.  Competitive sealed bidding may be practicable, that is, reasonably possible, but not necessarily advantageous, that is, in the State's best interest.  Before a contract may be entered into by competitive sealed proposals, the Department will determine in writing that competitive sealed bidding is either not practicable or not advantageous to the State.

 

2)         If competitive sealed bidding is not practicable or is not advantageous, competitive sealed proposals may be used.  The competitive sealed proposal method differs from competitive sealed bidding in two principal ways.  First, it permits discussions with competing offerors and changes in their proposals, including price.  Second, it allows comparative evaluations to be made when selecting among acceptable proposals for award of the contract.  Where evaluation factors involve the relative abilities of offerors to perform, including degrees of experience or expertise, where the types of supplies or services may require the use of comparative evaluations to evaluate them adequately, or where the type of need to be satisfied involves weighing values other than price alone, or where prior procurement experience indicates that competitive sealed proposals may result in more beneficial contracts for the State, use of competitive sealed proposals is the appropriate procurement method.

 

c)         Contracts for professional and artistic services are subject to and governed by the applicable Competitive Selection Procedures (44 Ill. Adm. Code 1.2035) adopted by the CPO-GS with the applicable oversight by the CPO-DOT.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.100  Small Purchases

 

a)         The following procurements, when they do not exceed $100,000, may be made without notice, competition, or use of any other method of procurement prescribed in the Code or this Part:

 

1)         Construction purchases;

 

2)         Individual purchases for supplies or services from any one source;

 

3)         Professional and artistic services for a nonrenewable term of not more than one year.  (See Section 20-20(a) of the Code.)

 

b)         Estimated needs shall not be divided in any manner to avoid the use of an established method of procurement.  (See Section 20-20(a) of the Code.)

 

c)         Determination of Small Purchase Status

 

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

 

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

 

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

 

d)         The CPO may establish policies and procedures regarding the use of the small purchase method of source selection to ensure compliance with policies, including promotion of small business, diversity and transparency.

 

e)         Each April, the CPO will determine the CPI adjustment to the small purchase thresholds applicable to the next fiscal year.  If the CPI is greater than zero, the thresholds identified in Section 20-20(a) of the Code will be reduced in the amount that, with the CPI increase, would result in the small purchase thresholds remaining as stated in Section 20-20(a) of the Code.  The CPO and the Procurement Policy Board will review the small purchase thresholds to determine if a modification to the thresholds is needed, and will do so within five years starting July 1, 2019.  This review may occur sooner at the call of the CPO or the Procurement Policy Board.

 

f)         This Section does not apply to construction-related professional services contracts awarded in accordance with the provisions of the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.110  Sole Source and Sole Economically Feasible Source Procurement

 

a)         Application

A contract may be procured from a single source without competition or use of any other method of procurement prescribed in the Code or this Part when the single source is the only economically feasible source capable of providing the services, including professional and artistic services, contemplated or the material or product to be supplied.  (See Section 20-25 of the Code.)

 

b)         Conditions for Use of Sole Source and Sole Economically Feasible Source Procurement Method

Sole source procurement is permissible when a requirement is available from only a single supplier.  Sole economically feasible source is permissible when only one supplier is deemed economically feasible.  A requirement for a particular proprietary item does not justify a sole source procurement if more than one vendor is authorized to provide that item.  The following  are examples of circumstances that may necessitate sole source and sole economically feasible source procurement, but are not exhaustive:

 

1)         when the compatibility of equipment, accessories, replacement parts, or service is a primary consideration;

 

2)         when trial use, testing or the development of new technology is the object of the procurement;

 

3)         when a sole supplier's item is to be procured for commercial resale;

 

4)         when utility services are to be procured;

 

5)         when the surety providing a performance bond tenders a completion contractor, acceptable to the Department, to complete a defaulted contract;

 

6)         when the item is copyrighted or patented and the item is not available except from the holder of the copyright or patent or service area licensee.

 

c)         As soon as a need is identified by the Department, the SPO must be contacted to determine the appropriate procurement method.  The final determination as to whether a procurement shall be made as a sole source or sole economically feasible source procurement shall be made by the SPO, based on a request made by the Department.  The request shall be in writing on a form prescribed by the PPB and shall include the basis for the sole source or sole economically feasible source determination.  Prior to authorizing the Department to enter into a contract based on the sole source or sole economically feasible source request, the CPO shall offer to conduct a public hearing and make a final determination as required by Section 20-25(a) of the Code.  Any request for hearing must be made at least 5 calendar days prior to the date of the scheduled hearing.  If no request for hearing is made, the hearing will be cancelled.  No sole source or sole economically feasible source procurement may proceed without final approval by the CPO.

 

d)         When an interested party submits a written request for a public hearing, the CPO will provide notice of intent to contract on a sole source basis to the PPB and publish the notice in the Bulletin at least 14 days prior to the public hearing required in Section 20-25(a) of the Code.  The notice will include the sole source procurement justification form prescribed by the PPB, a description of the item to be procured, the intended sole source contractor, and the date, time and location of the public hearing.  (See Section 20-25 of the Code.)

 

e)         The CPO may hold a public hearing in accordance with Section 20-25(a) of the Code. 

 

1)         Prior to the execution of a sole source contract, the CPO may hold a public hearing and provide written justification for the sole source contract.  The Department will also provide written justification for the sole source contract.

 

2)         Any interested party may present testimony at the public hearing.

 

3)         A sole source contract, when a public hearing was requested by an interested party, may be awarded, after the public hearing is conducted, with the approval of the CPO. Approval of the CPO will be granted in accordance with the Code and this Part. 

 

4)         A copy of all procurement documents provided at the hearing will be included in the Bulletin, along with the decision of the CPO to award or not award the sole source contract.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.120  Emergency Purchases

 

a)         A contract may be procured without the use of any other method of procurement prescribed in the Code or this Part when there exists a threat to public health or safety, or when an immediate contract is needed to repair State property in order to prevent or minimize further loss or damage to State property, or to prevent or minimize serious disruption in critical State services that affect health, safety or collection of substantial State revenues, including but not limited to completion of a defaulted contract, or to ensure the integrity of State records.  (See Section 20-30(a) of the Code.)

 

b)         The term of an initial emergency contract will not exceed 90 days as the time reasonably needed for a competitive procurement.  For the initial emergency contract:

 

1)         The emergency contract will provide a written description of the basis for the emergency and reasons for the selection of the particular contractor to be included in the contract file.  (See Section 20-30(a) and (c) of the Code.)

 

2)         Notice of the emergency contract will be provided to the PPB and published in the Bulletin no later than 5 calendar days after the contract is awarded.  For purposes of this Section, "contract is awarded" means that the contractor has received notification to proceed, which may be oral, and has started the work.

 

3)         Within 10 days after the procurement, the emergency statement will also be posted to the Bulletin and filed with both the PPB and the Auditor General.  (See Section 20-30(c) of the Code.) For purposes of this Section, "procurement" means that the contractor has received notification to proceed, which may be oral, and has started the work.

 

c)         An emergency contract may be extended beyond 90 days if the CPO determines additional time is necessary and that the contract scope and duration are limited to the emergency.  The CPO will hold a public hearing in accordance with Section 20-30(a) of the Code. 

 

1)         Prior to the execution of an extension past 90 days, the CPO will hold a public hearing and provide written justification for the emergency contract.  The Department may also provide written justification for the emergency contract.

 

2)         Notice of the hearing will be posted at least 14 calendar days prior to the emergency contract extension hearing date and prior to the expiration of the 90-day term of the initial emergency contract.  The notice will include a description of the need for the emergency contract extension, the contractor, and the date, time and location of the public hearing. 

 

3)         The PPB and members of the public may present testimony at the public hearing.

 

4)         A copy of the notice and documents provided at the hearing will be included in the Bulletin, along with the decision of the CPO to extend or not extend the emergency contract. 

 

d)         For purposes of this Section, State property includes all property both real and personal.  State records include all records regardless of the form of storage.  State services include, but are not limited to, all activities committed by law to the jurisdiction or responsibility of the Department, whether provided directly or indirectly by means of contract or intergovernmental agreement. 

 

e)         The Department will employ such competition as is practicable under the emergency circumstances to abate the emergency situation, including the use of existing contracts.

 

f)         Emergency contracts are exempt from the requirements of Section 20-80(d) of the Code as long as notice is filed with the PPB and published in the Bulletin, as required.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.122  Requests for Information

 

a)         When the Department does not have sufficient information, including, but not limited to, available supplies, products, or services, to issue a solicitation, the Department, in consultation with the SPO, may issue a request for information (RFI).  Public notice of the RFI shall be published in the Bulletin at least 14 days before the date set for the receipt of information.  The submission of information by a vendor in response to an RFI is not a prerequisite for that vendor to respond to a subsequent solicitation for which information was solicited, and the issuance of an RFI does not commit the Department to make any procurement of any kind.

 

b)         RFI responses are subject to the Illinois Freedom of Information Act (FOIA) [5 ILCS 140].  Responses that contain confidential information or trade secrets may be exempted from disclosure under FOIA. (See Section 7(1)(g) of FOIA.) The Department may assert this exemption provided the respondent furnishes the Department with both a redacted and unredacted copy of his/her response.

 

c)         An RFI is to be used for information gathering only and is not a vehicle for procuring supplies or services.

 

(Source:  Added at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.124  Joint Purchasing

 

a)         The CPO may authorize the Department to jointly purchase supplies and services with:

 

1)         a governmental unit of this State;

 

2)         a governmental entity of another state;

 

3)         a consortium of governmental entities of one or more states; or

 

4)         any not-for-profit agency that qualifies under Section 45-35 of the Code and that either:

 

A)        acts pursuant to a board established by or controlled by a unit of local government; or

 

B)        receives grant funds from the State or from a unit of local government.

 

b)         If the State is the lead state, all joint purchases shall be conducted in accordance with the Code and this Part.  Multiple awards are allowed.

 

c)         If the State is a participant procuring entity, all joint purchases shall be conducted in accordance with the procurement laws of the lead state.

 

d)         All joint procurements shall be by competitive solicitation except when the CPO determines:

 

1)         there is only one economically feasible source for the item; or

 

2)         that a threat exists to the public health or safety or that immediate expenditure is necessary to prevent or minimize serious disruption in critical State services.          

 

e)         All awards shall be published in the Bulletin in accordance with the Code.

 

f)         The CPO may designate contracts made through a joint purchase as available to other governmental units in Illinois.

 

g)         If any contract or amendment to a contract is entered into or purchase or expenditure of funds is made at any time in violation of the Act or any other law, the contract or amendment may be declared void by the CPO or may be ratified and affirmed if the CPO determines ratification to be in the best interest of the Department.

 

(Source:  Added at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.125  Small Business Set-Asides (Renumbered)

 

(Source:  Section 6.125 renumbered to Section 6.801 at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.126  Piggyback Contracts

 

a)         The CPO may authorize the purchase or lease of supplies and services that have been procured through a competitive process by:

 

1)         a federal agency;

 

2)         a consortium of governmental, educational, medical, research, or similar entities; or

 

3)         a group purchasing organization of which the CPO or Department is a member or affiliate.

 

b)         Contracting Requirements

 

1)         To piggyback a contract from another entity, the underlying contract must include language allowing other governmental units to utilize the contract.

 

2)         The original contracting entity shall be contacted and advised of the intended piggyback contract and, if necessary, discussions shall be held as to concerns about any potential for diminution of supply or lack of vendor capacity to provide supplies or services.

 

3)         The Department shall obtain from the original contracting entity, and include as part of its procurement file, the following:

 

A)        Solicitation;

 

B)        Bid tabulation or evaluation with the reason for award;

 

C)        Copy of the winning bid or proposal; and

 

D)        Copy of the contract.

 

c)         Prior to utilization, all piggyback contracts shall be submitted to the CPO for review and approval and notice of the award shall be published in the Bulletin.

 

d)         The Department is not required to participate in the procurement activity prior to an award.

 

e)         The CPO may authorize purchases and contracts that have been procured by other methods of procurement if, upon recommendation of the Department, the CPO determines it is in the best interests of the State.

 

f)         If any contract or amendment to a contract is entered into, or purchase or expenditure of funds is made, at any time in violation of the Act or any other law, the contract or amendment may be declared void by the CPO or may be ratified and affirmed if the CPO determines ratification to be in the best interest of the Department.

 

(Source:  Added at 44 Ill. Reg. 6222, effective April 8, 2020)

SUBPART D: COMPETITIVE SEALED BID PROCEDURES

 

Section 6.130  General Conditions for Use

 

The procedures set forth in this Subpart D will be used for all contracts procured by the CPO through the use of competitive sealed bids.

 

Section 6.140  Invitations for Bids

 

a)         The process for procuring a contract by competitive sealed bids begins with the issuance of an Invitation for Bids by publication in the Bulletin not less than 14 days prior to the date set for the opening of bids.  (See Section 20-10(c) of the Code.)

 

b)         The Invitation for Bids may include more than one contract item and will include the following minimum requirements.

 

1)         Instructions and information to potential bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the address of the office to which bids are to be delivered, the maximum time for bid acceptance, certifications and assurances, mandatory disclosures, and any other special information.  The Invitation for Bids may incorporate documents by reference provided that the Invitation for Bids specifies where such documents can be obtained.

 

2)         A purchase description for each contract item, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description.

 

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

 

4)         The Invitation for Bids may provide a form that will specify or organize the manner of price submission and that the bidder shall sign and submit along with all other necessary submissions, including disclosure forms.

 

c)         For procurements of construction, the Invitation for Bids also will include information and instructions for obtaining all contract specifications, special provisions, plans for the construction contract work and bid forms for individual contract items. Bidders for construction contracts are required to have Authorization to Bid issued in accordance with the Department's rules for Prequalification of Contractors, Authorization to Bid, and Subcontractor Registration found at 44 Ill. Adm. Code 650.

 

d)         In addition, each construction contract item will include but not be limited to the following minimum information and requirements enforceable in accordance with State or federal law through the terms and conditions of the contract.

 

1)         Information concerning the location, limits and description of the construction work and the scope thereof contemplated by the contract.

 

2)         An estimate of the various quantities of the type of work to be performed and the materials to be furnished in the performance of the contract.

 

3)         The manner of bid price submission for a construction contract may include lump sum, a schedule of unit prices or a combination thereof based upon the estimate of quantities provided in the contract.

 

4)         The manner of making changes in the quantities and such alterations in the work as necessary to satisfactorily complete the contract.

 

5)         Provisions to assure that all work is performed in accordance with the contract requirements including but not limited to the following methods.

 

A)        Limitations on subcontracting;

 

B)        Qualifications and requirements for contractor supervisory personnel;

 

C)        Engineering services to be provided by the contractor;

 

D)        Department provided resident personnel and inspectors;

 

E)        Performance and payment bond requirements;

 

F)         Inspection and acceptance of the work requirements;

 

G)        Restrictions, sources and quality requirements for all materials and testing or inspection procedures;

 

H)        The method of determination and documentation of pay quantities and a record of the materials, supplies and labor furnished in performance of the contract;

 

I)         The manner of determining satisfactory prosecution of the work and progress to completion of the work in accordance with the time for completion set out in the contract including, when incorporated into the contract, provisions for liquidated damages and incentive payments for early completion; and

 

J)         Provisions for the suspension of work and the termination of the contract.

 

6)         All labor, employment and wage requirements applicable to the contract, and the manner of payroll recording, submission and inspection.  (See the Prevailing Wage Act [820 ILCS 130] or the Davis-Bacon Act (40 USC 3141).)

 

7)         All procurement preferences made applicable to the contract. (See Article 45 of the Code.)

 

8)         The manner of measuring the work for payment based upon the estimated quantities provided or upon the actual quantities of material and work measured and completed including but not limited to progress payments as the work proceeds, and final payment.

 

(Source:  Amended at 37 Ill. Reg. 19098, effective November 15, 2013)

 

Section 6.150  Amendments to Invitations for Bids

 

Invitations for Bids may be supplemented, by publication in the Bulletin, with additional contract items, amended instructions, information, or extensions of any times stated in the invitation.  Contract items may be subject to amendment.  Amendment to contract items may require that the bidder acknowledge receipt of all amendments issued.  Each amendment will reference the contract item it amends.  Amendments will be published in the Bulletin.  It is the bidder's responsibility to determine which, if any, addenda or revisions pertain to any project the bidder may be bidding on.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.160  Preparation of Bids

 

a)         Bidders shall follow all instructions included in the Invitation for Bids and bid forms for submission of bids on the contract item for which bids are sought.

 

b)         Bidders shall submit their bids in the manner required by the Invitation for Bids.

 

c)         Unless otherwise provided, all prices shall be given in dollars and cents.  Separate prices shall be entered for all pricing items indicated in the bid form.  When alternate bids are sought for a particular contract item, the alternates will be identified in the bid form.  A bid on every alternate is not required unless otherwise specifically provided.  When required by the Invitation for Bids, the bidder shall indicate a unit price for each of the separate price items called for in the bid form.  The bidder may be required to show the products of the respective quantities and unit prices in a space provided for that purpose, and a gross sum shown in the place indicated in the bid form as the summation of those products.  All writing shall be in a permanent, noneraseable form, except the signature of the bidder, which shall be written in permanent, noneraseable ink.  Electronic signatures will be accepted for electronically submitted bids in accordance with the security standards established by the Department of Central Management Services. (See 5 ILCS 175/25-101(c) and 14 Ill. Adm. Code 105.300.)

 

d)         When required by the Invitation for Bids, each bid shall be accompanied by a bid bond in the form provided by the Department with the bid form package. The bid bond shall be made and tendered by a surety acceptable to the CPO in the amount stated in the Invitation for Bids.  The Department will accept a bank cashier's check or a certified check in lieu of a surety bid bond.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.170  Delivery of Bids

 

Bids shall be sealed and submitted in the manner specified or allowed by the Invitation for Bids.  When sent by mail, the sealed bid shall be addressed to the CPO at the address and in care of the official in whose office the bids are to be received.  All bids shall be delivered and received by the CPO prior to the time and at the place specified in the Invitation for Bids.  The date and time of receipt will be recorded.  Bids will remain sealed and will be stored in a secure place until the date and time established for bid opening.  The Department will not accept paper bids nor receive electronic bids after the time stated in the Invitation for Bids.

 

(Source:  Amended at 37 Ill. Reg. 5764, effective April 19, 2013)

 

Section 6.180  Change or Withdrawal of Bids

 

An authorized agent of a bidder may change or withdraw a bid if written or in-person notice of the change or withdrawal is received by the Department before the time specified for submission of bids.  No change or withdrawal is allowed after bid opening except as provided in Section 6.230.  Changes must be initialed in ink by the bidder.  (See Section 20-10(f) of the Code.)

 

(Source:  Amended at 40 Ill. Reg. 6693, effective April 7, 2016)

 

Section 6.190  Combination Bids for Construction Contracts

 

a)         A combination bid is a total bid received on two or more contract items. No combination bids other than those specifically established by the Department will be considered.  Separate bid forms will be issued for each contract item in the combination.  Bids may be submitted on the combination as well as on the separate contract items of the combination.  The CPO reserves the right to make awards on combination bids or separate contract item bids.

 

b)         If a combination bid is submitted on two or more contract items, separate bids on each individual contract shall also be submitted, and unless separate bids are so submitted the combination bid will not be considered.  If the bidder intends to submit a combination bid, the bidder shall state, in the place provided in the bid form, the amount of the combination bid for the entire combination.

 

c)         If a combination bid is submitted on any stipulated combination, and errors are found to exist in computing the gross sum bid on any one or more of the individual bids, corrections will be made by the CPO and the amount of the combination bid will be corrected so that it will be in the same proportion to the sum of the corrected gross sum bid as the combination bid submitted was to the sum of the gross sum bid submitted.

 

d)         The following provisions govern combination bidding:

 

1)         When a combination bid is submitted and awarded for two or more contract items, the combination bid price will be prorated against each contract item in proportion to the bid price submitted for each individual contract item.

 

2)         Separate contracts will be executed for each individual contract item included in the combination.

 

3)         The completion time for all contracts awarded on a combination bid will be the latest completion time designated in any of the contracts included in the combination, unless otherwise provided in the contracts.

 

Section 6.200  Pre-Bid Conferences

 

Pre-bid conferences may be conducted to enhance understanding of the procurement requirements.  They will be announced in the Bulletin.  The conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with the project, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids.  Only the written minutes of the conference shall be binding.  Nothing stated in the pre-bid conference shall change the Invitation for Bids unless a change is made by written amendment to the Invitation for Bids.  Minutes of the conference will be available upon request to all those prospective bidders known to have received an Invitation for Bids.  If the conference is mandatory, the minutes shall be supplied to attendees only.

 

(Source:  Amended at 37 Ill. Reg. 5764, effective April 19, 2013)

 

Section 6.210  Public Opening of Bids

 

a)         Bids shall be opened publicly or through an electronic procurement system at the time and place specified in the Invitation for Bids.  (See Section 20-10(d) of the Code.)

 

b)         The name of each bidder and the price term of each bid will be read aloud and/or recorded in a tabulation of bids for each contract item advertised.

 

c)         After execution of the contract, the tabulation of bids in the total amount and unit price items, if applicable, of all bidders will be available for public inspection.

 

d)         The Department or CPO may postpone a bid opening if unforeseen circumstances arise (e.g., severe weather, natural disaster, power or network outage).

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.220  Consideration of Bids

 

a)         After the bids are opened and recorded, the bids will be reviewed for responsiveness to the Invitation for Bids, conformity with all requirements prescribed in this Part, and satisfactory evidence of compliance.  If unit prices are required, the bids will be compared on the basis of the summation of the products of the quantities shown in the bid schedule by the unit bid prices.

 

b)         The right is reserved by the Department to reject any or all bids, to waive minor informalities or technicalities, to advertise for new bids, or to request confirmation or clarification from any bidder regarding information contained in a bid.

 

c)         Reasons for rejection of all bids include but are not limited to:

 

1)         The object of the contract being procured is no longer required.

 

2)         The contract provisions require amendment.

 

3)         The solicitation did not provide for consideration of all factors of significance to the Department.

 

4)         The bid prices exceed available funds or the bid prices exceed the anticipated estimate of costs to the extent that, in the judgment of the Department, prices are unreasonable.

 

5)         Evidence of collusion among bidders.

 

6)         Actions or events beyond the control of the Department, such as strikes, acts of God, material shortages, acts of the public enemy or litigation, would have an adverse effect on the completion of the anticipated contract.

 

d)         Reasons for rejection of any individual bids include but are not limited to:

 

1)         More than one bid for the same contract item from a bidder under the same or different names.

 

2)         Evidence of collusion among bidders.

 

3)         Unbalanced bids in which the bid prices for some items are, in the judgment of the Department, out of proportion to the bid prices for other items.

 

4)         If the bid does not contain a unit price for each pay item listed, except in the case of authorized alternate pay items or lump sum pay items.

 

5)         If the bid form is other than that furnished or authorized by the Department, or if the form is altered or any part of the form is detached.

 

6)         If there are omissions, erasures, alterations, unauthorized additions, conditional or alternate bids, or irregularities of any kind that may tend, in the judgment of the Department, to make the bid incomplete, indefinite, or ambiguous as to its meaning.

 

7)         If the bidder adds any provisions reserving the right to accept or reject an award, or to enter into a contract pursuant to an award.

 

8)         If the bid is not accompanied by the proper bid bond or substitute guaranty.

 

9)         If the bid is prepared in any manner other than as indicated in this Part or the Invitation for Bids making the bid not responsive.

 

10)         If the bidder failed to incorporate relevant addenda or revisions.

 

11)         Failure to submit a Disadvantaged Business Enterprise (DBE) utilization plan in accordance with any special provisions, special notices, or bid documents.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.230  Mistakes

 

a)         If a bidder claims a mistake in its bid, the bid may be withdrawn in accordance with this Section without payment of damages to the Department as provided in the terms of a bid bond or other bid security, provided the bidder claiming the mistake demonstrates to the CPO with competent and reliable evidence:

 

1)         that the claimed mistake is related to a material feature of the contract;

 

2)         that the mistake would have serious, material consequences to the bidder such that enforcement of a contract would be unconscionable;

 

3)         that the mistake occurred notwithstanding the exercise of reasonable care by the bidder; and

 

4)         that the bidder has raised the claim of a mistake without delay in order to prevent the CPO from altering its position in such a manner that loss to the State would occur.

 

b)         The CPO reserves the right to correct obvious, apparent errors in bids.  A bid may not be withdrawn if a mistake is apparent and the intended correct bid is clearly evident on the face of the bid.  Examples of mistakes that may be clearly evident on the face of the bid include but are not limited to typographical errors, errors in extending unit prices, transposition errors, and arithmetic errors.

 

c)         Mistakes claimed after execution of the contract will not be corrected.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.240  Award After Bid Evaluation

 

a)         Unless all bids are rejected, an award notification will be made to the lowest responsible bidder whose bid is responsive to and conforms with the requirements and criteria of the invitation.  Tie bids will be decided by lot. All responsibility, responsiveness, and price factors are considered so as to select the bid most advantageous to the State.  An individual contract item advertised in an Invitation for Bids may state other, additional award and evaluation criteria that will be capable of objective consideration for award.  (See Section 20-10(g) of the Code.)

 

b)         Responsibility of bidders for construction contracts is determined in accordance with the Department's rules for Prequalification of Contractors, Authorization to Bid, and Subcontractor Registration found at 44 Ill. Adm. Code 650.

 

c)         For nonconstruction contracts, the responsibility of bidders will be determined based upon the following factors unless some other or additional factors or prequalification procedures are stated in the Invitation for Bids.

 

1)         The bidder shall possess the appropriate financial, material, equipment, facility and personnel resources and expertise necessary to meet all contractual obligations.

 

2)         The bidder shall have a satisfactory record of performance, including but not limited to a sound record of integrity and business ethics.

 

3)         The bidder shall be under no legal disability of any kind to contract with the State.

 

4)         The bidder shall have submitted all information requested by the Invitation for Bids concerning responsibility.

 

d)         Federal aid contract awards, or proposals by the Department or CPO to reject all bids, are subject to the concurrence of the Federal Highway Administration Division Administrator for Illinois pursuant to 23 CFR 635.114(a) and (h). 23 CFR 635.114(a) and (h) are incorporated by reference as those sections were in effect as of April 1, 2011.  No later amendments or editions are incorporated.  Copies of the appropriate material are available from the Chief Procurement Officer, Executive Ethics Commission, Illinois Department of Transportation, 2300 S. Dirksen Parkway, Room 200, Springfield, Illinois 62764 or by calling 217/558-5434.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.250  Split and Multiple Awards

 

a)         The CPO may advertise a contract for a potential split award of a definite quantity requirement between two or more bidders.  The Invitation for Bids will advise of the reservation of split awards and the basis for dividing the award.

 

b)         The CPO may advertise a contract for multiple award of an indefinite quantity when two or more contractors are necessary for adequately meeting the Department's needs.  The Invitation for Bids will advise of the reservation of multiple awards.

 

Section 6.260  Time for Award

 

Unless the Invitation for Bids specifies a different time for bid acceptance, a notification of award will be made in writing dated within 45 calendar days after the opening of bids.

 

Section 6.270  Delay in Award

 

Should circumstances be encountered after bid opening that may delay award beyond the 45 day or other advertised period, the responsive bidders may be requested to extend the bid acceptance period.

 

Section 6.275  Notice of Award

 

a)         Notice of the Department's intent to award a contract, with concurrence of the SPO, pursuant to this Subpart D will be published in the Bulletin.

 

b)         When the SPO determines that it is not in the best interest of the State to award to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids, the SPO will provide, by written explanation, for the determination that another bidder will receive the award.  The written explanation will be filed with the Legislative Audit Commission and the PPB.  It will also be available to the public within 30 days after the decision to award the contract.  The written explanation must include:

 

1)         A description of the Department's needs;

 

2)         A determination that the anticipated cost will be fair and reasonable based on engineering estimates;

 

3)         A listing of all evaluated responsible and responsive bidders; and

 

4)         The name of the bidder selected, pricing, and the reasons for selecting that bidder.  (Section 20-10(g) of the Code)

 

(Source:  Added at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.280  Binding Contract

 

a)         Once an award has been made, the bidder is bound to perform according to the terms and conditions of the contract, the Invitation for Bids and this Part.

 

b)         An approved contract executed by the CPO is required before the State is bound.  An award may be canceled any time by the CPO prior to execution in order to protect the public interest and integrity of the bidding process or for any other reason if, in the judgment of the CPO, the best interests of the State will be promoted.

 

Section 6.290  Requirement of Contract Bond for Construction Contracts

 

The successful bidder awarded a construction contract shall furnish the Department a performance and payment bond with good and sufficient sureties in the full amount of the contract as the penal sum.  (See the Public Construction Bond Act [30 ILCS 550].)  The surety shall be acceptable to the CPO, shall waive notice of any changes and extensions of time, and shall submit its bond on the form furnished by the CPO.  Performance security for other contracts shall be as stated in the Invitation and contract.

 

Section 6.300  Execution of Contracts

 

a)         No contract subject to this Subpart D will be executed until the 14-day PPB notice period has expired or the Department has received a waiver of the 14-day notice period from the PPB. (See Section 5-30 of the Code.)

 

b)         The bid form submitted by the bidders may be in such a form that the signature of the bidder on the form is also the signature of the bidder for purposes of contract execution.  In such circumstances, the Department will, after acceptance and approval of the bid for contracting purposes, execute the contract and return a copy to the bidder.

 

c)         If the contract as bid requires additional execution by the bidder, the contract shall be executed by the successful bidder and returned, together with any required contract bond, within 15 days after the contract has been mailed to the bidder.  Failure of the successful bidder to execute the contract and file acceptable bonds within 15 days after the contract has been mailed to the bidder is cause for the cancellation of the award and the forfeiture of the proposal guaranty.  If the contract is not executed by the Department within 30 days following receipt from the bidder of the properly executed contract and bond, the bidder shall have the right to withdraw the bid without penalty.

 

d)         The CPO or the SPO will execute the contract to demonstrate approval of the procurement process.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.310  Publication of Contracts (Repealed)

 

(Source:  Repealed at 35 Ill. Reg. 16518, effective September 30, 2011)

SUBPART E: COMPETITIVE SEALED PROPOSAL PROCEDURES

 

Section 6.320  General Conditions for Use

 

The procedures set forth in this Subpart E will be used for all contracts procured by the CPO by competitive sealed proposals supported by a written determination provided to the CPO that competitive sealed bidding is not practicable or not advantageous.  (See Section 20-15(a) of the Code.)

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.330  Request for Proposals

 

a)         The process for procuring a contract by competitive sealed proposals begins with the issuance of a Request for Proposals by publication in the Bulletin not less than 14 days before the date set in the request for the opening of proposals.  (See Section 20-15(b) and (c) of the Code.)

 

b)         The Request for Proposals will include the following elements that may be adapted to accomplish the objectives of the Department.

 

1)         A general description of the type of service needed.

 

2)         A general description of the nature of the work and its relationship to the objectives of the Department.

 

3)         The anticipated starting date and duration of the contract.

 

4)         A general description of the final product to be produced or service to be rendered.

 

5)         A detailed description of the work of the project that also discloses a summary of any preliminary work that has been done, and any special conditions affecting the performance of the work, including but not limited to location, licenses, skills required and materials to be supplied.  In addition, a timetable for performing the work, including reporting requirements, may be included or instructions for the offerors to provide an acceptable timetable may be specified.

 

6)         A description of the required format for a proposal, including some or all of, but not limited to, the following elements:

 

A)        Technical Proposal:  A document describing in detail how the work will be accomplished, including any services that would be provided through a subcontract.

 

B)        Staffing:  A summary of the qualifications of the individuals who would be assigned to the project, a general account of experience in the field of work, and a list of current and anticipated contracts that could require the involvement of the project staff during the term of the Department's contract.

 

C)        Cost Estimate:  When the project is federally-funded, a detailed estimate of direct and indirect costs of accomplishing the work. When the project is not federally-funded, the Request for Proposal will indicate when and how price will be submitted.

 

D)        Samples of Previous Work:  Copies of reports, manuals, plans, etc., that are closely related to the type of services needed.

 

E)        A statement of any additional requirements.

 

7)         A description of the evaluation factors that will be used to evaluate and rank the proposals, and the relative importance of price to the evaluation factors.  (See Section 20-15(e) of the Code.)

 

8)         A name and phone number of the responsible Department office, and the official mailing address, date and time for submission of the proposal and supporting documents.

 

9)         For any federally-funded contract that is expected to exceed $50,000 in cost, a notification that fiscal information may be required prior to an award detailing the offeror's accounting system, payroll burden, fringe expenses, and general and administration overhead expense percentage rating for purposes of a pre-contract audit.

 

10)         A statement, for nonfederally-funded contracts, of when and how price will be submitted.

 

11)         A statement that discussions may be conducted with offerors that submit proposals determined to be reasonably susceptible of being selected for award, but that proposals may be accepted and evaluated, and that an award may be made and contract executed without discussions.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.340  Delivery of Proposals

 

a)         Proposals shall be sealed and submitted in the manner specified or allowed by the Request for Proposals.  When sent by mail, the sealed proposal shall be addressed to the official mailing address specified in the request.  All proposals shall be delivered and received by the Department prior to the time and at the official address specified in the Request for Proposals.  Proposals received after the time specified will be returned to the offeror unopened. The date and time of receipt will be recorded.  Proposals will be held in a secure place until the established due date.  After the date and time established for receipt of proposals, a register of proposals will be prepared that will include for all proposals the name of each offeror and a description sufficient to identify the supply or service item offered.  The register of proposals is open to public inspection after award of the contract.  Proposals will be maintained in a confidential manner during the period prior to execution of a contract.  (See Section 20-15(f) of the Code.)

 

b)         Proposals will be opened publicly or via an electronic procurement system in the presence of at least one witness at the time and place indicated, but contents of individual proposals will not be disclosed.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.350  Evaluation of Proposals

 

a)         The evaluation is based on the evaluation factors set forth in the Request for Proposals.  Numerical rating systems may be used but are not required. Factors not specified in the Request for Proposals will not be considered.  For purposes of conducting discussions with responsible offerors and for revision of proposals, proposals may be initially classified as:

 

1)         acceptable;

 

2)         potentially acceptable, that is, reasonably susceptible of being made acceptable; or

 

3)         unacceptable.

 

            Offerors whose proposals are unacceptable will be so notified.

 

b)         Except for federally-funded contracts, proposals will be evaluated on all particulars independent of price.

 

c)         For federally-funded contracts, a pre-discussion audit may be performed to provide the necessary data to assure that the offeror has an acceptable accounting system, adequate and proper justification of the various rates charged to perform the work and is aware of federal cost eligibility and documentation requirements.  Pre-discussion audits and the resultant audit opinions are required for all contracts expected to exceed $250,000 and for all contracts of less than $250,000 where:

 

1)         there is insufficient knowledge of the offeror's accounting system;

 

2)         there is previous unfavorable experience regarding the reliability of the offeror's accounting system; or

 

3)         the contract involves the procurement of new equipment or supplies for which cost experience is lacking.

 

            Pre-discussion audits may be waived when sufficient audited data is available to permit reasonable comparisons with the cost proposal.

 

Section 6.360  Discussions with Responsible Offerors

 

a)         Purposes of Discussions.  Discussions may be held to promote understanding of the Department's requirements and the offerors' proposals, and to facilitate arriving at a contract that will be most advantageous to the State, taking into consideration price and the other evaluation factors set forth in the Request for Proposals.  (See Section 20-15(f) of the Code.)

 

b)         Conduct of Discussions.  Offerors will be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals.  If during discussions there is a need for any substantial clarification of or change in the Request for Proposals, the Request shall be amended to incorporate such clarification or change and all offerors advised accordingly.  Revealing one offeror's price to another and disclosure of any information derived from competing proposals are prohibited.  Any substantial oral clarification of a proposal shall be reduced to writing by the offeror. (See Section 20-15(f) of the Code.)

 

c)         Best and Final Offers.  The Department may establish a common date and time for the submission of best and final offers.  The Department may conduct additional discussions or change the State's requirements and require another submission of best and final offers.  If an offeror does not submit either a notice of withdrawal or another best and final offer, that offeror's immediately previous offer will be construed as its best and final offer.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.370  Award

 

a)         An award will be made pursuant to a written determination by the SPO, retained in the procurement file, showing the basis on which the award was found to be most advantageous to the State, based on the factors set forth in the Request for Proposals, and taking into consideration price.  (See Section 20-15(g) of the Code.)

 

b)         Nothing shall compel the award of a contract.  Contract execution will be as specified in the Request for Proposals.  A solicitation may be canceled at any time when such action is determined in the sole judgment of the Department to be in the best interest of the State.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.380  Execution of Contracts

 

No contract subject to  this Subpart E will be executed until the 14-day PPB notice period has expired or the Department has received a waiver of the 14-day notice period from the PPB.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

SUBPART F: CONTRACT ADMINISTRATION

 

Section 6.385  Expenditure in Excess of Contract Price

 

a)         No funds in excess of the contract price may be obligated or expended by change order or contract adjustment unless the additional work to be performed or materials to be furnished are germane to the original contract.

 

b)         A construction contract change order may cause the obligation or expenditure of funds in excess of the original contract amount provided the subject of the change order is germane to the original contract and the Department determines the additional expenditure is approved in accordance with Section 30-35 of the Code.  The Department will approve construction contract change orders without supplemental procurement procedures in accordance with the following requirements and thresholds.

 

1)         A construction contract change order that is germane and that causes the obligation or expenditure in excess of the amounts in Section 30-35(b) of the Code will not be authorized without supplemental procurement procedures unless the scope of the change order is approved as provided in Section 30-35 of the Code.

 

2)         Determination of germaneness and the amount of additional expenditure or obligation thresholds will be determined in accordance with this Part and Section 30-35 of the Code.

 

3)         Prior written approval or disapproval will be made by the Department in accordance with the threshold amounts established in Section 30-35 of the Code, and in all cases if the contemplated construction contract change order will cause an expenditure or obligation of funds of more than $100,000 in excess of the contract price even though the threshold levels provided in Section 30-35 of the Code do not require such action.  The written approval will state the reasons for the additional obligation or expenditure and the basis for the germaneness determination.

 

4)         For purposes of determining the scope of the change order and the value thereof that is subject to the requirements of this Section, the Department will consider the total net value of all added and deducted work functions related to the object of the change order and the work of the contract to be affected.

 

5)         Notice of approved construction contract change orders in excess of $100,000 will be published in the Bulletin.

 

c)          A construction contract adjustment is germane to the original contract.  If a contract adjustment requires additional obligation or expenditure in excess of $100,000, the Department will record the provisions of the original contract in the contract payment file as authority for the addition.

 

d)         Contract change orders and contract adjustments will be processed on a form prescribed by the Department.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.388  Continuing Disclosure

 

a)         Every person that has entered into a contract for more than one year in duration for the initial term or for any renewal term shall certify, by January 1 of each fiscal year covered by the contract, after the initial fiscal year, to the Chief Procurement Officer any changes that affect its ability to satisfy the requirements of Article 50 of the Code.  (Section 50-2 of the Code)

 

b)         If a contractor or subcontractor continues to meet all requirements of Article 50 of the Code, or if the contract has been substantially completed before the contract expiration and the contract has not yet expired, the certification under subsection (a) is not required.

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

SUBPART G: PROTESTS

 

Section 6.390  Application

 

The procedures of this Subpart G will govern the resolution of protests received by the CPO from an interested party concerning a contract solicitation.

 

Section 6.400  Interested Party

 

In order to be considered an interested party, the protester must be or have been an actual bidder or offeror who demonstrates compliance in all respects with this Part and the terms of the subject Invitation for Bids or Request for Proposals.

 

Section 6.410  Subject of the Protest

 

a)         A protest may be filed regarding any phase of the solicitation process for a particular contract.

 

b)         The subject of the protest shall concern fraud, corruption or illegal acts undermining the objectives and integrity of the procurement process.

 

c)         Protest procedures of this Subpart G do not apply to issues of prequalification, lack of contractor responsibility, suspension or debarment.

 

(Source:  Amended at 37 Ill. Reg. 5764, effective April 19, 2013)

 

Section 6.420  Filing of a Protest

 

a)         All protests shall be in writing and filed with the CPO within 7 calendar days after the protester knows or should have known of the facts giving rise to the protest.  Protests filed after the 7 calendar day period will not be considered.  In addition, protests that raise issues of fraud, corruption or illegal acts affecting specifications, special provisions, supplemental specifications and plans must be received by the CPO no later than 14 calendar days before the date set for opening of bids.

 

b)         The protest shall be contained in an envelope clearly labeled "Protest." The written protest shall include as a minimum the following requirements.

 

1)         The name, address, telephone and facsimile numbers of the protester.

 

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

 

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

 

4)         A detailed statement of the factual and legal grounds of the protest, including all relevant documents and exhibits that demonstrate fraud, corruption or illegal acts having the effect of undermining the integrity of the procurement process.

 

5)         All information establishing the timeliness of the protest.

 

6)         The signature of the protester.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.430  Stay of Action during Protest

 

When a protest has been timely filed and before an award has been made, the SPO will make no award of the contract until the protest has been resolved, unless the award of the contract without delay is necessary to protect the interests of the State. When a protest has been filed after an award has been made, the protest will be denied.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.440  Decision

 

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

 

b)         The protest will be sustained only if it is determined by the CPO that the protest conclusively demonstrates by the preponderance of relevant information submitted that fraud, corruption or illegal acts have occurred that undermine the integrity of the procurement process.

 

c)         If the protest is sustained, the remedies available are limited to cancellation or revision of the solicitation, or readvertisement of the solicitation.  Relief available does not include award of the contract to the protester.

 

d)         The decision of the CPO is final and conclusive unless clearly erroneous, arbitrary, capricious or contrary to law.  (See Section 20-75 of the Code.)  A copy of the decision of the CPO will be transmitted to the protester within 14 days after the decision is entered.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

SUBPART H: SPECIFICATIONS

 

Section 6.450  Standard Specifications

 

All Department construction contracts will identify the version of the Standard Specifications, applicable to the type of work involved, used by the Department Division undertaking the project.

 

Section 6.460  Contract Documents

 

For construction contracts, the specifications, supplemental specifications, special provisions and plans will provide the requirements for the categories of work and materials needed for the contract.  For all other contracts involving the procurement of supplies, the specifications will be incorporated in the appropriate contract documents.

 

Section 6.470  Specification Standards

 

a)         Material and product specifications for construction contracts and construction-related service contracts that may require the delivery of material or products will be used that satisfy the needs of the Department and that are developed in accordance with the following standards.

 

1)         Material and product specifications will reflect the needs of the Department and will describe the technical or performance requirements necessary to complete the contemplated work.

 

2)         Brand-name only product specifications, including patented or proprietary products, will not be used, unless:

 

A)        such products may be procured competitively with equally suitable nonbrand-name products; or

 

B)        such products are necessary for compatibility with existing facilities; or

 

C)        no equally suitable alternate exists; or

 

D)        such products are to be used for research or for a distinctive type of application for experimental purposes.

 

3)         When more than one product will fulfill the requirements for an item of work and the products are judged by the Department to be of satisfactory quality, and equally acceptable on the basis of engineering analysis and estimated price, the contract specifications may contain or include by reference a qualified products list.

 

b)         For nonconstruction and nonconstruction-related services contracts, the CPO adopts the standards for specifications established by the CPO-GS.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

SUBPART I: SUSPENSION OF CONTRACTORS OR SUBCONTRACTORS

 

Section 6.480  Purpose

 

The purpose of this Subpart I is to establish the standards and procedures governing the administrative action of suspension that may be taken by the CPO to safeguard the public interest in the solicitation, execution, administration and performance of public contracts or subcontracts.  This Subpart applies to all suspension administrative actions taken by the CPO regarding any contractor or subcontractor that has participated, is currently participating or may be expected to participate in any Department contract or subcontracts.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.490  Definitions

 

As used in this Subpart:

 

a)         "Affiliates" means firms where one controls or has the power to control another, or a third party or parties controls or has the power to control both.

                       

b)         "Hearing Officer" means the CPO or an attorney, licensed to practice law in this State, appointed by the CPO.

 

c)         "Participation" means to enter into or attempt to enter into a contract awarded or approved by the Department, irrespective of the method of procurement, or any subcontract, material supply agreement or equipment lease transaction in connection with any such contract.

 

d)         "Indictment" means the charge, information, or other filing by a competent authority charging a criminal offense.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.500  Policy

 

In order to protect the public interest in the solicitation, execution and performance of contracts or subcontracts administered by the Department, it is the policy of the Department to conduct business only with contractors or subcontractors of responsible business integrity and honesty.  Suspension is a discretionary action imposed in accordance with this Part to serve the public interest and to implement this policy.  It may be imposed only for the causes and in accordance with the procedures set forth in this Subpart.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.510  General

 

The CPO may suspend a contractor or subcontractor from participation on any contract or subcontract awarded by or requiring approval or concurrence of the Department upon a determination by the CPO based upon adequate evidence that the contractor or subcontractor has engaged in conduct proscribed by Section 6.520.  This determination may be predicated on evidence developed by means of an investigation conducted by the CPO or the Department and procurement compliance monitors and the record of any hearing requested and conducted pursuant to this Subpart; by review of the public record containing a criminal conviction, a civil judgment, or an admission under oath of conduct evidencing proscribed conduct including a plea of nolo contendere; or the findings and decisions made in accordance with law by another public agency, or another appointed CPO, that the contractor or subcontractor has engaged in conduct proscribed by Section 6.520.

 

(Source:  Amended at 40 Ill. Reg. 6693, effective April 7, 2016)

 

Section 6.520  Causes for Suspension or Debarment

 

A contractor or subcontractor may be suspended or debarred from participation due to acts or omissions that indicate that the contractor or subcontractor lacks integrity and honesty in the conduct of business or the performance of contracts.  Acts or omissions that indicate the lack of business integrity and honesty include but are not limited to:

 

a)         fraud, bribery, embezzlement, theft, collusion, conspiracy, anti-competitive activity or other misconduct and offenses prohibited by law whether or not any such misconduct or offense is in connection with a Department contract or subcontract or any contract or subcontract requiring Department approval;

 

b)         making a material false statement in an application for prequalification or any forms or affidavits required as part of a prequalification process;

 

c)         materially violating any rule or procurement procedure or making a material false statement in connection with any rules or procurement procedures of the Department;

 

d)         making a material false statement, representation, claim or report respecting the character, quality, quantity, or cost of any work performed or materials furnished in connection with a contract or subcontract administered or supervised by the Department;

 

e)         doing business with a suspended contractor or subcontractor in connection with a contract or subcontract of the Department or subject to approval of the Department during the period of suspension; or

 

f)         being debarred or suspended by another agency of this State or the United States.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.530  Interim Suspension

 

The CPO may immediately suspend a contractor or subcontractor prior to and during the pendency of a hearing provided by this Subpart if the CPO finds that the facts and circumstances upon which the suspension cause is predicated are of such a nature as to require immediate action to safeguard the public interest in the solicitation, execution, administration or performance of contracts or subcontracts, whether awarded by the Department or subject to Department approval.  An interim suspension may be imposed pending the completion of an investigation of the causes for suspension.  Indictment upon charges evidencing a cause for suspension is a basis for an interim suspension.  An interim suspension is effective immediately and will continue for a period of time established by the CPO of up to 120 days unless terminated sooner by the CPO.  The CPO may extend the duration of an interim suspension beyond 120 days in order to allow for completion of a hearing that was scheduled for commencement during the original 120 day interim suspension period.  In cases involving interim suspension based upon indictment, the interim suspension may be imposed for a period of up to one year or until conclusion of the legal proceeding.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.540  Voluntary Exclusion

 

A contractor or subcontractor may accept a status of nonparticipation or limited participation in Department contracts or subcontracts pursuant to the terms of an administrative settlement.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.550  Term of Suspension

 

Except as herein provided, the term of a suspension imposed by the CPO will be for a period, commensurate with the seriousness of the cause or causes, of up to 10 years.  In cases involving the inadvertent or accidental failure to make the full disclosures required by Section 50-35 of the Code, the term of suspension will be for a period of no more than two years.  (See Section 50-35(f) of the Code.)  In cases involving the intentional, willful, or material failure to make the full disclosures required by Section 50-35 of the Code, the term of suspension will be for a period of not less than two years and not more than 10 years with eligibility for reinstatement after two years. (See Section 50-35(g) of the Code.)

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.560  Coverage

 

a)         A suspension and interim suspension applies to the contractor or subcontractor set forth in the notice of suspension.

 

b)         If the contractor or subcontractor named in the notice of suspension is a person, the suspension also applies to any other contractor or subcontractor:

 

1)         in which the suspended person is an officer, director, manager or in any other substantial management or supervisory position, until such time as the person is severed from such contractor or subcontractor; or

 

2)         in which the suspended person has controlling legal or beneficial financial interest, until such time as the suspended person's interests are divested.

 

c)         In addition to all covered entities and affiliates, the suspension also applies to any entity or affiliate that is formed or organized subsequent to the date a suspension action was entered.

 

d)         Any suspended contractor or subcontractor, for the term of such suspension, is ineligible to participate as a contractor, subcontractor, material supplier or lessor of equipment on or in connection with contracts or subcontracts awarded or approved by the Department.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.570  Other Agency Suspensions

 

Suspension under this Subpart I may be concurrent with or consecutive to any other suspension or debarment imposed by another public agency or CPO.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.580  Responsibility

 

Suspension under this Subpart I will also be deemed a finding of lack of responsibility.

 

Section 6.590  Continuation of Executory Contracts

 

Suspension or voluntary exclusion pursuant to this Subpart I shall not relieve a contractor or subcontractor or its surety of any obligation to be performed in accordance with the terms of any executory contract or bond that remains in full force and effect.  Executory contracts are voidable by the Department without penalty or further payment, except payment for completed and accepted work, if the facts and circumstances giving rise to the suspension are of such a nature as to require action to safeguard the public interest.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.600  Exception Provision

 

A suspension action is final, except that the period of time during which a contractor or subcontractor is suspended may be decreased, delayed or rescinded at any time, if, in the judgment of the CPO, the public interest warrants such action. The CPO may grant an exception permitting a suspended or voluntarily excluded contractor or subcontractor to participate in a particular contract or subcontract or type of contracts or subcontracts if the public interest will be served by the participation.  A contractor or subcontractor suspended for the intentional, willful, or material failure to make the disclosures required by Section 50-35 of the Code is not eligible for exception or reinstatement until two years of the suspension shall have passed. (See Section 50-35(g) of the Code.)

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.610  Notice of Suspension

 

a)         Any contractor that the CPO proposes to suspend pursuant to this Part will be furnished written notice by personal service or by certified or registered mail.

 

b)         The notice will include the following:

 

1)         The cause for suspension on which the proposed suspension is based.

 

2)         A clear and concise statement of the matters asserted and acts complained of, and the statutes, cause or rules upon which the allegations in the notice are based.

 

3)         The legal authority and jurisdiction under which the action is taken, and the consequences of a failure to respond.

 

c)         A notice may be amended at any time.

 

d)         If the CPO has imposed an interim suspension, the notice will so indicate, will provide the reasons for the interim suspension, will state the interim period, and will state whether the interim suspension is pending completion of an investigation, an ensuing legal proceeding or a hearing provided according to this Subpart I.

 

e)         Except in cases of interim suspensions imposed by reason of indictment, the notice will set forth the right to request a hearing.

 

f)         For informational purposes, a copy of the written notice of suspension will be mailed to the Procurement Policy Board within 5 days after contractor notification.

 

(Source:  Amended at 37 Ill. Reg. 5764, effective April 19, 2013)

 

Section 6.620  Response and Request for Hearing

 

a)         Any contractor or subcontractor receiving a notice of suspension may, within 30 days after receipt of a notice, file an appearance and request for a hearing.  A contractor or subcontractor that does not file an appearance and request a hearing within the 30 days after receipt shall be deemed to have waived any hearing and will be subject to immediate suspension.

 

b)         Within 30 days after receipt of a notice that imposes an interim suspension, the contractor or subcontractor may submit, in person, in writing, or through a representative, information, documentation and argument in opposition to the interim suspension.  The CPO will consider the contractor's or subcontractor's submission in light of the evidence developed in the pending investigation, and may modify or terminate the suspension or may leave it in force.  The CPO's decision concerning imposition of an interim suspension is final without further hearing.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.630  Hearing Date and Hearing Officer

 

a)         Upon receipt of an appearance and request for hearing, the CPO will set the matter for a hearing within 30 days, and notify the contractor or subcontractor of the place, time and date of the hearing and the designated Hearing Officer.

 

b)         The contractor or subcontractor may file a written motion for disqualification of a Hearing Officer, setting forth reasons of personal bias or conflict of interest, within three days after appointment of the Hearing Officer.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.640  Answer

 

The contractor or subcontractor may file a written answer to a notice not later than twenty days prior to the hearing date, but shall not be required to file an answer.  The answer may include affirmative defenses.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.650  Form of Documents

 

a)         Documents shall clearly show the file hearing number and the title of the proceedings in connection with which they are filed.

 

b)        Except as otherwise provided, two copies of all documents shall be filed.

 

c)         Documents shall be typewritten or reproduced from typewritten copy on letter size white paper.

 

d)        Each document filed shall be signed by the party or by his authorized representative or attorney.

 

Section 6.660  Computation of Time

 

a)         Computation of any period of time prescribed by this Subpart I begins with the first business day following the day on which the act, event or development initiating such period of time occurs, and runs until the end of the last day, or the next following business day if the last day is a Saturday, Sunday, or legal holiday.  When the period of time is five days or less, Saturdays, Sundays and legal holidays are excluded in the computation of time.

 

b)        Notice requirements shall be construed to mean notice received, but proof that notice was dispatched by means reasonably calculated to be received by the prescribed date shall be prima facie proof that the notice was timely received.

 

Section 6.670  Appearances

 

a)         Any person participating in proceedings may appear as follows:

 

1)         A person may appear in his/her own behalf or by an attorney at law licensed to practice in the State of Illinois, or both.

 

2)         A business, nonprofit, or government organization may appear by any bona fide officer, employee, or representative, or may be represented by an attorney licensed to practice in the State of Illinois, or both.

 

b)         Attorneys not licensed to practice in the State of Illinois may appear on motion.

 

c)         An attorney appearing in a representative capacity shall file a written notice of appearance.

 

Section 6.680  Hearing Procedures

 

a)         The Hearing Officer has the authority to conduct and preside over the hearing, to take all necessary action to avoid delay, to maintain order, to ensure compliance with all notice requirements and to ensure the development of a clear and complete record.  The Hearing Officer shall have all powers necessary to conduct a fair and impartial hearing including, but not limited to, the power to:

 

1)         Administer oaths and affirmations;

 

2)         Regulate the course of hearings, set the time and place for continued hearings, fix times for filing of documents, and in general conduct the proceedings, according to recognized principles of administrative law and the provisions of this Part;

 

3)         Examine witnesses and direct witnesses to testify, limit the number of times any witness may testify, limit repetitious or cumulative testimony, and set reasonable limits on the amount of time each witness may testify;

 

4)         Rule upon all motions and offers of proof and receive relevant, material evidence admissible under the rules of evidence applied in civil cases in the circuit courts of the State, including evidence not admissible under those rules, but that is of a type commonly relied upon by reasonably prudent people in the conduct of their affairs;

 

5)         Direct parties to appear and confer for the simplification of issues, or presentation of evidence that may be received in written form without prejudice to the parties, and otherwise conduct pre-hearing conferences;

 

6)         Dispose of procedural requests or similar matters;

 

7)         Issue orders relating to pre-hearing discovery to the extent authorized by and permitted under this Part; and

 

8)         Enter any order that further carries out the purpose of this Part.

 

b)         The Hearing Officer has the authority to extend the date of any hearing, provided that the Hearing Officer may condition the granting of a contractor's request for an extension on the imposition or extension of an interim suspension should the circumstances warrant such action.

 

c)         Any party to the hearing shall have the right to direct any other party to produce for inspection, copying, reproduction or photocopying written documents relevant to the subject matter of the hearing.  Such request for documents shall be in writing and served on the party from whom production of documents is sought.  A copy of the request shall be sent to the Hearing Officer and shall become part of the record of the case.  The request shall specify a reasonable time, place and manner of making the inspection and copying.

 

d)         The parties shall be afforded the opportunity to present, examine and cross-examine witnesses.

 

e)         In cases where it has been established by admission or conviction or judgment of a court of competent jurisdiction that the contractor has engaged in conduct warranting a suspension or where it has been established by findings made in accordance with law by another public agency that the contractor has engaged in conduct warranting a suspension, the sole issue before the Hearing Officer shall be the receipt of evidence as to the appropriate length of a suspension.  In such cases the Hearing Officer shall not receive evidence relating to the merits of the prior judicial or administrative decision or findings.

 

f)         The Hearing Officer shall make a report containing findings of fact and conclusions of law and shall transmit the entire record, including such findings and conclusions, to the CPO for review and final decision.  If the CPO will not review the record prior to rendering a decision, the Hearing Officer will serve upon the parties a proposed decision to which the parties may file a brief containing exceptions.

 

g)         Testimony at the hearing shall be recorded either by a certified court reporter or a mechanical recording device, but need not be transcribed unless requested by a party who shall pay for the transcription of the portion requested.  The transcript and the record offered in connection with the hearing shall constitute the official record.

 

h)         The record shall include:

 

1)         All pleadings, motions, and rulings;

 

2)         Evidence received;

 

3)         A statement of matters officially noticed;

 

4)         Offers of proof, objections and rulings thereon;

 

5)         Any proposed findings and exceptions to the report of the Hearing Officer, and the decision.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.690  Determination

 

a)         Based on the record as a whole and an adequate evidence standard of proof, the CPO will determine the suspension action to be taken.

 

b)         In assessing adequate evidence, consideration will be given to how much credible information is available, its reasonableness in view of surrounding circumstances, corroboration or lack thereof as to important allegations, and inferences that may be drawn from the existence or absence of affirmative facts.  This assessment will include an examination of basic documents such as contracts, inspection reports, and correspondence.

 

c)         Upon reaching a final decision, the CPO will notify the contractor or subcontractor of the determination and will set forth the period of time during which the contractor or subcontractor shall be suspended from bidding on Department contracts or contracts requiring Department approval or concurrence.  Affected local government agencies will be notified of the final decision.  Any interim suspension shall be deducted from the period of final suspension.

 

d)         Parties will be served with a copy of the final decision by mail, postage prepaid, certified or registered, addressed to the last known address of the person, partnership, association, or company involved.  A copy of the final decision will be mailed to each party and to all attorneys of record.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

SUBPART J: MISCELLANEOUS

 

Section 6.700  Procurement File

 

a)         The procurement file will contain all written documentation, forms, and any information generated by the Department or received from a proposer, bidder, or contractor for the procurement.

 

b)         The Department's procurement file will not include trade secrets or other competitively sensitive, confidential, or proprietary information.

 

c)         Multiple procurement file locations may exist, but must be readily available for review or disclosure under the Freedom of Information Act (FOIA).

 

(Source:  Amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.705  Property Rights

 

Receipt of an Invitation for Bids, Request for Proposals or other procurement document, or submission of any response thereto or other offer confers no right to receive an award or contract, nor does it obligate the State in any manner. All procurement documents submitted by a bidder or offeror become the property of the Department for disposition in accordance with the requirements of law. Trade secrets or other proprietary information submitted to the Department shall be expressly identified in writing; however, the Department reserves the right to determine the validity of any such claim, and may refuse to award a contract or may void any contract in circumstances where the party claiming the trade secret or proprietary data is unable to agree to disclosure for a public purpose.  (See Section 1-25 of the Code.)

 

(Source:  Section 6.705 renumbered from Section 6.700 at 37 Ill. Reg. 19098, effective November 15, 2013)

 

Section 6.710  Federal Requirements

 

Procedures applicable to procurements that contemplate the use of federal-aid funds, grants or loans shall be in accordance with requirements established by the federal administration having responsibility therefor, even if in addition to or in contravention of this Part.  (See Section 20-85 of the Code.)

 

Section 6.720  Intergovernmental Agreements

 

Any procurement conducted by the Department on behalf of another government entity pursuant to an intergovernmental agreement shall be conducted using the procedures of this Part in accordance with the applicability provisions of the Code.  (See Section 1-10(b) of the Code.)

 

Section 6.730  No Waiver of Sovereign Immunity

 

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

 

Section 6.740  Written Determinations

 

The CPO will prescribe any administrative methods and operational procedures to be used in preparing written determinations required to be made by the Department by the Code or this Part, and will make such delegations to responsible officers for the implementation of the methods and procedures as will achieve the proper preparation, execution and retention of each written determination.

 

(Source:  Amended at 35 Ill. Reg. 16518, effective September 30, 2011)

 

Section 6.750  Severability

 

If any provision or application of this Part is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without such invalid provision or application.

SUBPART K: PREFERENCES

 

Section 6.801  Small Business Set-Asides

 

a)         The CPO, in consultation with the Department, may determine categories of construction, supply, and service procurements that will be set aside for small businesses.  The set-aside designation may be made for current and future procurements for a fair proportion of a specific construction, supply, or service, or for a class of like construction, supplies or services.  A fair proportion of construction contracts means no less than 25% nor more than 40% of the annual total contracts for construction.  A set-aside designation may last indefinitely or for a stated period of time, as determined by the Department.  (See Section 45-45(a) and (c) of the Code.)

 

b)         A business that meets the State (under Section 45-45(b) of the Code) or federal definition of a small business or small business concern on the day of bid or proposal opening will be considered a small business for the duration of the contract.  The definition will be stated in the contract proposal.

 

c)         If the Department wishes to make a procurement covered by a small business set-aside designation, the solicitation will note that responses are limited to those from responsible small businesses.  Bids or proposals received from businesses other than small businesses will be rejected as nonresponsive.  (See Section 45-45(a) of the Code.)

 

d)         If the Department determines that acceptance of the best bid or proposal will result in the payment of an unreasonable price, the Department will reject all bids or proposals and withdraw the designation of small business set-aside for the procurement in question.  When a small business set-aside is withdrawn, notification will be published in the Bulletin with an explanation.  After withdrawal of the small business set-aside, the procurement will be conducted in accordance with the limitations of the Code and this Part.  (See Section 45-45(d) of the Code.)

 

e)         Unless the Department provides a definition for a particular procurement that reflects industrial characteristics or uses a federal standard, a small business is one:

 

1)         Independently owned and operated.

 

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

 

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

 

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

 

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

 

C)        $8,000,000 for retail business.

 

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

 

6)         When computing the size of a business, the number of employees and annual sales and receipts, as applicable, of the business and all affiliates will be considered.  Concerns are affiliates when either one directly or indirectly controls or has the power to control the other, or, when a third party or parties controls or has the power to control both.  In determining whether concerns are independently owned and operated and whether affiliation exists, consideration will be given to all appropriate factors, including the use of common facilities, common ownership and management and contractual arrangements.  However, a franchise relationship will not affect small business status if the franchise has the right to profit commensurate with ownership and bears the risk of loss or failure.  (See Section 45-45(b) of the Code.)

 

f)         Small Business Specialist

 

1)         The CPO shall designate one or more individuals to serve as its small business specialist, who shall have the duties set forth in Sections 45-45 and 45-90 of the Code, and who shall also act as coordinator of small business.  The designated small business specialist shall compile statistics provided by the Department needed to make the small business annual report to the General Assembly required by Section 45-45(f) of the Code.

 

2)         The small business specialist shall provide written instruction to any business registered as a small business pursuant to Section 45-45 of the Code on how to register for the Bulletin.  Notice shall be provided within 30 days after the small business certification as required in Section 15-25 of the Code.

 

g)         Small Business Contracts

 

1)         Goal

 

A)        It is the goal of the State of Illinois to award not less than 10% of the total dollar amount of State contracts to small businesses.

 

B)        Small businesses are defined as those businesses meeting the criteria established in Section 45-45 of the Code and subsection (e) of this Section.

 

2)         Goal Measurement

 

A)        The goal shall be measured on a full fiscal year basis.

 

B)        The Department's expenditures, whether against contracts established by the Department or against contracts established on behalf of the Department, shall be included in the Department's goal attainment statistics.

 

C)        The Department may satisfy its goal, in whole or in part, by counting expenditures made by State vendors to subcontractors that are small businesses.

 

3)         Department Compliance Plan

 

A)        The Department shall submit an annual compliance plan of how it intends to reach its goal, and a timetable for reaching its goal, as required by Section 45-90(c) of the Code.  The CPO will establish the format and timetable for submission of the compliance plan.  The CPO will approve the plan if it meets the requirements of the Act and this Part.

 

B)        The Department shall submit an annual utilization report of small business contracts during the preceding fiscal year, including lapse period spending and a mid-fiscal year utilization report.  The CPO will establish the format and timetable for submission of the utilization plan and will provide a copy of the utilization report to the PPB.

 

C)        The CPO or small business specialist appointed under Section 45-45 of the Code may recommend ways in which the Department may reach its goal.  Upon a finding by the CPO that the Department's compliance plan is insufficient to reach the Department's goal, the CPO will recommend ways in which the Department can reach its goal.

 

D)        If the compliance plans or utilization reports indicate the Department goal will not be reached, the CPO may request the Department to explain the Department's noncompliance.  If the CPO determines the Department is not making a serious effort to reach the goal, the CPO will prepare a report for submission to the Governor and General Assembly with recommendations for remedial action.

 

h)         Contractors desiring to submit bids or proposals or to otherwise contract for items set aside for small businesses or small business concerns shall submit information verifying that the contractor qualifies as a small business.  The Department may establish procedures for verifying such information.

 

(Source:  Section 6.801 renumbered from Section 6.125 and amended at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.803  Disadvantaged Business Enterprise Program

 

a)         In accordance with 49 CFR 26, the Department must implement a DBE program, approved by the U.S. Department of Transportation, to remove barriers to the participation of DBEs in DOT-assisted contracts, as well as other similar objectives. 

 

b)         The Department shall review contracts to ensure compliance with its DBE program as required by 49 CFR 26.

 

(Source:  Added at 44 Ill. Reg. 6222, effective April 8, 2020)

 

Section 6.805  Veterans

 

a)         It is the goal of the State to promote and encourage the continued economic development of small businesses owned and controlled by qualified veterans and that qualified service-disabled veteran-owned small businesses and veteran-owned small businesses participate in the State's procurement process as both prime contractors and subcontractors.  [30 ILCS 500/45-57]

 

b)         The Department of Central Management Services has delegated to the Department the authority to determine the goal for each individual construction and construction-related services contract.  (See 44 Ill. Adm. Code 20.100.)

 

c)         Contracts that are subject to federal reimbursement are exempt from veteran-owned small business goals. (See 44 Ill. Adm. Code 20.120.)

 

(Source:  Added at 44 Ill. Reg. 6222, effective April 8, 2020)

SUBPART L: ILLIANA EXPRESSWAY PROCUREMENT

 

Section 6.900  Purpose and Objective

 

a)         Purpose

The purpose of this Part is to establish policies and procedures to allow the Department to fulfill its obligations to enter into public private agreements between the State of Illinois and one or more private entities for any or all of the work to develop, finance, construct, manage, and operate the Illiana Expressway.  (Section 5(c) of the Act)

 

b)         Objective

Coordination is required among the CPO, the Department and the State of Indiana in efforts to build a new interstate highway connecting Interstate Highway 55 in northeastern Illinois to Interstate Highway 65 in northwestern Indiana.

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.905  Definitions

 

As used throughout this Subpart, terms defined in the Illinois Procurement Code and the Act have the same meaning as in the Code or the Act and as further defined in this Subpart.  Each term in this Subpart has the meaning set forth as follows unless its use clearly requires a different meaning.   

 

"Act" means the Public Private Agreements for the Illiana Expressway Act [605 ILCS 130].

 

"Agreement" means a public private agreement.  (Section 10 of the Act)

 

"Best Value Selection" means any selection process in which proposals contain both price and qualitative components and award is based upon a combination of price and qualitative considerations. (See 23 CFR 636.103.)

 

"COGFA" means the Commission on Government Forecasting and Accountability.

 

"Chief Procurement Officer" or "CPO" means the person appointed under Section 1-15.15(2) of the Code.

 

"Clarifications" means a written or oral exchange of information that takes place after the receipt of proposals.  The purpose of a clarification is to address minor, non-material or clerical revisions in a proposal.  (See 23 CFR 636.103.)

 

"Code" means the Illinois Procurement Code [30 ILCS 500].

 

"Contractor" means a person that has been selected to enter or has entered into a public private agreement with the Department on behalf of the State for the development, financing, construction, management, and any or all of the operation of the Illiana Expressway pursuant to the Act.  (Section 10 of the Act)

 

"Department" means the Illinois Department of Transportation. (Section 10 of the Act)

 

"Discussions" means written or oral exchanges that take place with the short listed offerors. (See 23 CFR 636.103.)

 

"Final Proposal" means the technical proposal and cost proposal that will be the basis for award.  

 

"Illiana Expressway" means the fully access-controlled interstate highway connecting Interstate Highway 55 in northeastern Illinois to Interstate Highway 65 in northwestern Indiana, which may be operated as a toll or non-toll facility.   (Section 10 of the Act)

 

"Interim Agreements" means an agreement entered into with the contractor prior to or in connection with the negotiation of the public private agreement. (Section 30 of the Act)

 

"Manage" means conducting, supervising or maintaining services under the public private agreement.

 

"Offeror" means a person that responds to a request for proposals under this Subpart and as part of a competitive request for proposals process. The term offeror may include potential offerors identified as short listed persons from the qualifications process.  (Section 10 of the Act)

 

"Operation" means performance of management activities for the Illiana Expressway, including, but not limited to, user fees, maintenance and traffic control.

 

"Person" means any individual, firm, association, joint venture, partnership, estate, trust, syndicate, fiduciary, corporation, or any other legal entity, group, or combination thereof.  (Section 10 of the Act)

 

"PPB" means the Procurement Policy Board created by Section 5-5 of the Code.

 

"Prequalification" means the rating process established by the Department that requires all prospective bidders or offerors to be permitted to submit bids or offers in accordance with 44 Ill. Adm. Code 650 or Chapter 8 of the Department's Bureau of Design and Environment Manual (manual).  The manual is available on the Department's website at http://www.dot.il.gov/desenv/bdemanual.html.

 

"Proposal" means a response to a Request for Proposals and includes draft and final proposals if provided for in the RFP.

 

"Public Private Agreement" means an agreement or contract by the Department on behalf of the State and all schedules, exhibits, and attachments thereto, entered into pursuant to a competitive Request for Proposals process governed by this Subpart for any or all of the development, financing, construction, management, and operation of the Illiana Expressway. (Section 10 of the Act)

 

"Qualifications" means whether a person has the necessary prerequisites to compete for work contemplated for the Illiana Expressway, including, but not limited to, qualifications related to experience and knowledge of public private partnerships.

 

"Request for Proposals" or "RFP" means the process by which the Department requests information from offerors, including all documents, whether attached or incorporated by reference, used for soliciting proposals.  (See 30 ILCS 500/1-15.75.)

 

"Request for Qualifications" or "RFQ" means the document issued by the Department in Phase I of a two-phased selection process.  An RFQ typically describes the project in enough detail to allow potential offerors to determine if they wish to compete and, also, forms the basis for requesting qualifications submissions from which the most highly qualified offerors can be identified.  (See 23 CFR 636.103.)

 

"Responsible" means the capability, integrity and reliability of an offeror or contractor that, in all respects, will assure good faith performance to undertake and complete fully the requirements of a contract. 

 

"Responsive" means, in the context of procurement procedures, compliance in all meaningful, material respects with the RFP. 

 

"Revenue Sharing" means all revenues divided between the Department and the contractor, including, but not limited to, income; user fees; earnings; interest; lease payments; allocations; moneys from the federal government, the State, and units of local government, including but not limited to federal, State, and local appropriations, grants, loans, lines of credit, and credit guarantees; bond proceeds; equity of credit and credit guarantees; equity investments; service payments; or other receipts arising out of or in connection with the financing, development, construction, management, or operation of the Illiana Expressway.  (Section 10 of the Act)

 

"Short Listing" means the narrowing of the field of offerors through the selection of the most highly qualified offerors who have responded to an RFQ.  (See 23 CFR 636.103.)

 

"Solicitation" means a public notification of the Department's need for information, qualifications or proposals related to identified services.  (See 23 CFR 636.103.)

 

"State" means the State of Illinois.  (Section 10 of the Act)

 

"Statement of Qualifications" means a document submitted in response to an RFQ.

 

"Stipend" means a monetary amount that can be paid to unsuccessful offerors. (See 23 CFR 636.103.)

 

"Secretary" means the Secretary of the Illinois Department of Transportation.  (Section 10 of the Act)

 

"Technical Proposal" means that portion of the proposal that contains design solutions and other qualitative factors that are provided in response to the RFP.

 

"Two-Phase Selection Process" means a procurement process in which Phase I consists of short listing (based on qualifications submitted in response to an RFQ) and Phase II consists of the submission of price and technical proposals in response to an RFP.  (See 23 CFR 636.103.)

 

"User Fees" means the tolls, rates, fees, or other charges imposed by the State or the contractor for use of all or part of the Illiana Expressway. (Section 10 of the Act)

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.910  General Conditions for Use

 

The procedures set forth in this Subpart L will be used for Illiana Expressway public private agreements procured by the Department through a competitive request for proposals process.  (See Section 20(a) of the Act.)

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.915  Prequalification and Qualifications

 

Due to the unique nature of this two-step procurement process, the Department may use its existing prequalification procedures as a supplement to the qualifications procedures in the Act (see Sections 17 and 20 of the Act), including the issuance of an RFQ.  Prequalification requirements will be set forth in the RFQ.

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.920  Information Exchanges

 

When initiated by the Department, the Department, with the approval of the CPO and in accordance with the Code, may have exchanges with industry prior to the receipt of proposals in order to obtain information.

 

a)         Exchanges include, but are not limited to, the following:

 

1)         Industry or small business conferences;

 

2)         Public hearings;

 

3)         Market research;

 

4)         One-on-one meetings with potential offerors that will include the CPO or the CPO's designee;

 

5)         RFPs;

 

6)         Presolicitation or proposal conferences; and

 

7)         Site visits.  (See 23 CFR 636.115(c).)

 

b)         When specific information is necessary for the preparation of a proposal and that specific information is disclosed to one or more potential offerors, that specific information will be made available to all potential offerors as soon as practicable, but no later than the next general release of information, in order to avoid creating an unfair competitive advantage.  (See 23 CFR 636.115(e).) 

 

c)         Upon request by a potential offeror, and as approved by the CPO, information provided to a potential offeror in response to that potential offeror's request will not be disclosed if doing so would reasonably reveal the potential offeror's confidential business strategy because it involves a trade secret or concerns commercial or financial information that is proprietary, privileged or confidential and would cause competitive harm to the offeror.  This information may be subject to disclosure under federal or State freedom of information laws.  (See 23 CFR 636.115(e) and 636.subpart D (information exchanges); see also 5 ILCS 140.)

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.925  Competitive Request for Proposals Process

 

a)         The competitive request for proposals process will, at a minimum, solicit statements of qualifications and proposals from offerors (Section 20(b) of the Act) as part of a two-phase selection process and solicited through an RFQ and RFP.

 

1)         The first phase consists of the receipt and evaluation of qualifications in response to an RFQ, resulting in a short list of the most highly qualified persons. 

 

2)         The second phase consists of the receipt and evaluation of technical proposals and financial proposals in response to an RFP.  Innovative financing concepts will be encouraged.

 

3)         Offerors may be permitted to submit alternate technical concepts in their pre-proposals as long as these alternate technical concepts do not conflict with criteria agreed upon in the environmental decision making process and the alternate technical concept is in the State's best interest.  Alternate technical concept proposals may supplement, but not substitute for, base proposals that respond to the RFP requirements.  (See 23 CFR 636.209.)   

 

b)         Public notice of an RFQ will be published in the Transportation Procurement Bulletin for at least 30 days before the date set in the invitation for the submittal of statements of qualifications.  (See Section 17 of the Act.)

 

c)         Public notice of an RFP will be published in the Transportation Procurement Bulletin for at least 21 days before the date set in the invitation for the opening of proposals. (See 23 CFR 635.112.)

 

d)         The competitive request for proposals will take into account, but not be limited to, the following criteria:

 

1)         The offeror's plans for the Illiana Expressway project;

 

2)         The offeror's current and past business practices;

 

3)         The offeror's poor or inadequate past performance in developing, financing, constructing, managing, or operating highways or other public assets;

 

4)         The offeror's plans to utilize small businesses, including the offeror's ability to meet, and past performance in meeting, or exhausting good faith efforts to meet the utilization goals, or plans to comply with utilization goals, for business enterprises established in Section 6(d) of the Business Enterprise for Minorities, Females, and Persons with Disabilities Act [30 ILCS 575/6(d)] or federal law or regulations that establish standards and procedures for the utilization of minority, disadvantaged, and female-owned businesses;

 

5)         The offeror's ability to comply with, and past performance in complying with, Section 2-105 of the Illinois Human Rights Act [775 ILCS 5].  (Section 20 of the Act)

 

e)         The Department will not include terms in the RFQ or RFP that provide an advantage, whether directly or indirectly, to any contractor presently providing goods, services, or equipment to the Department.  (Section 20(e) of the Act)

 

f)         The RFP may be revised prior to the receipt of proposals.

 

g)         Oral presentations may supplement written information at the invitation of the Department at any time during the procurement process, including, but not limited to, one-on-one meetings with the Department and oral presentations of proposals.  If oral presentations will be used, the time and date, format, and other details will be included in the solicitation.

 

h)         The Department may elect to pay a stipend to unsuccessful offerors who have submitted responsive proposals. 

 

1)         This decision will be made in accordance with 23 CFR 636.112 and 636.113 and may depend on eligibility for federal aid participation.

 

2)         If stipends are used, the RFP will describe the process for distributing the stipend to qualifying offerors.  Acceptance of the stipend is not mandatory.

 

i)          A procurement protest process will be specified in the RFQ and the RFP.

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.930  Organizational Conflict of Interest Requirements

 

a)         All conflict provisions contained in the Code will be included in the RFQ or RFP documents, including, but not limited to, Section 50-35 of the Code addressing financial disclosures and potential conflicts of interest. 

 

b)         The Department will take into consideration the mulit-faceted nature of this procurement and related procurements when forming proposal and selection team members.  An understanding of public private partnerships will be required with some members having, at a minimum, expertise in private and public financing, construction and engineering.

 

c)         The Department will make available specific instructions applicable to proposal and selection team members.  These instructions will include all applicable provisions of the State Officials and Employees Ethics Act, including, but not limited to, ethical conduct and gift bans. [5 ILCS 430] 

 

d)         Notwithstanding disclosure requirements under the Code, the Department will address the following situation, as appropriate:

 

1)         Consultants or subconsultants who assist the Department in the preparation of the RFP document under contract will be prohibited from submitting a proposal and from participating on a team submitting a proposal in response to the RFP.  However, the Department, with the CPO's concurrence, may determine there is not an organizational conflict of interest for a consultant or subconsultant when:

 

A)        The role of the consultant or subconsultant (subcontractor) was limited to the provision of preliminary design, reports or similar "low-level" documents that will be incorporated into the RFP and did not include assistance in the development of instructions to offerors or evaluation criteria; or

 

B)        All documents and reports delivered to the agency by the consultant or subconsultant are made available to all offerors.

 

2)         This practice may be reviewed pursuant to the provisions of the Code.  (See 23 CFR 636.116.)

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.935  Proposal Evaluation

 

a)         Proposals will be evaluated and any award will be made in accordance with applicable federal requirements for the competitive RFP process described in this Subpart L. (See 23 CFR 636.)

 

b)         Proposals will be evaluated solely on the factors and criteria specified in the RFP.

 

c)         Proposals will be reviewed by the Department and may lead to discussions with offerors pursuant to Section 6.940.

 

d)         Each proposal will be reviewed by the Department to determine if the proposal is responsive to the submission requirements outlined in the RFP and to determine if the offeror is responsible.

 

1)         A responsive proposal is one that follows the requirements of the RFP, includes all documentation, is submitted in the format outlined in the RFP, is timely submitted, and has been signed by representatives of the offeror authorized to bind the offeror.  Failure to comply with these requirements may result in the proposal being deemed nonresponsive.

 

2)         A responsible offeror is one that demonstrates the capability to satisfy the commercial, ethical and technical requirements set forth in the RFP.  An offeror's failure to demonstrate that it is responsible may result in the proposal being rejected.

 

e)         The Department reserves the right to request that an offeror provide additional information or clarify information (see Section 6.945).  The Department's determination regarding the responsiveness of a proposal and the responsibility of an offeror will be final.

 

f)         In addition to any other rights under this Subpart L, the Department may:

 

1)         Withdraw an RFQ or RFP at any time and publish a new RFQ or RFP;

 

2)         Decline to award a public private agreement for any reason;

 

3)         Request clarifications to any qualifications or RFPs or seek one or more revised proposals or one or more best and final offers;

 

4)         Modify the terms, provisions and conditions of an RFQ, RFP, technical specifications, or form of a public private agreement during the procurement process; and

 

5)         Interview offerors in accordance with this Subpart.

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.940  Discussions with Offerors 

 

In accordance with provisions of the RFP, the Department may meet with each offeror for the purpose of discussing the RFP or proposal in detail. The offerors will be notified of any questions or requests for additional information. The offeror may be invited for confidential discussions with the Department to discuss answers to written or oral questions and any facet of the draft RFP or proposal.

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.945  Clarifications

 

After the initial evaluation, the results for all proposals will be gathered, evaluated and ranked for each of the evaluation criteria. If information is not complete, the Department will either seek clarifications or declare the proposal nonresponsive.

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.950  Selection and Negotiations

 

a)         The Department may use a selection process that results in the selection of one or more proposals including, but not limited to, best value to the public (see Section 6.905, "Best Value Selection") or revenue sharing, or any other selection process that the Department determines is in the best interest of the State.

 

b)         The Department will select at least 2 offerors as finalists.  One offeror will be named a finalist and at least one named an alternate finalist.  The Department will submit the offerors' statements of qualification and proposals to the COGFA and the PPB.  (Section 20(f) of the Act) 

 

c)         The Department may select one offeror for negotiations based on the evaluation criteria set forth in the RFP.  In the event that the Department determines that negotiations with the selected offeror are not likely to result in a public private agreement or no longer reflect the best offer to the State and the public, the Department may commence negotiations with another responsive offeror and may suspend, terminate or continue negotiations with the other offeror or offerors.  If negotiations with the next offeror are unsuccessful, the Department may terminate the procurement without award and may begin a new procurement under this Subpart L. 

 

d)         The Department will not select an offeror as the contractor for the Illiana Expressway project until it has received and considered the findings of the COGFA and the PPB, as set forth in their respective reports.  (Section 20(f) of the Act)

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.955  Interim Agreements

 

Prior to or in connection with the negotiation of the public private agreement, the Department may enter into one or more interim agreements with the selected offeror or other vendors if the Department determines in writing that it is in the public interest to do so.  (Section 30 of the Act)

 

a)         The interim agreement may not authorize the contractor to perform construction work prior to the execution of the public private agreement.  (Section 30(b) of the Act)

 

b)         The interim agreement may include any or all of the provisions set forth in Section 30(c) of the Act.  (Section 30(c) of the Act)

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.960  Award

 

a)         Before awarding a public private agreement to an offeror, the Department will schedule and hold a public hearing or hearings on the proposed public private agreement and publish notice of the hearing or hearings at least 7 days before the hearing and in accordance with Section 4-219 of the Illinois Highway Code [605 ILCS 5/4-219].  

 

1)         The notice must include the following:

 

A)        The date, time, and place of the hearing and the address of the Department;

 

B)        The subject matter of the hearing;

 

C)        A description of the agreement that may be awarded; and

 

D)        The recommendation that has been made to select an offeror as the contractor for the Illiana Expressway project. 

 

2)         At the hearing, the Department will allow the public to be heard on the subject of the hearing.  (Section 20(g) of the Act)

 

b)         After the procedures required in this Section have been completed, the Department will make a determination as to whether the offeror should be designated as the contractor for the Illiana Expressway project and will submit the decision to the Governor and to the Governor's Office of Management and Budget.  After review of the Department's determination, the Governor may accept or reject the determination.  If the Governor accepts the determination of the Department, the Governor shall designate the offeror for the Illiana Expressway project. (Section 20(h) of the Act)

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.965  Execution of Contract and Notice to Proceed

 

The Department will publish a notice of the execution of the public private agreement and the Notice to Proceed on its website at http://www.dot.il.gov and in the newspaper of general circulation within the county or counties whose territory includes or lies within 5 miles from a proposed or existing Illiana Expressway project site.  Additionally, the Department will publish the full text of the public private agreement on its website.  (Section 65 of the Act)

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.970  Subsequent Contracts

 

a)         The Department may, pursuant to the Code and this Part, award contracts for goods, services, or equipment to persons other than the contractor for goods, services, or equipment not provided for in the public private agreement.  (Section 50 of the Act)  Notwithstanding any provision of law to the contrary, the selection of professional design firms by the Department will comply with the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act [30 ILCS 535].  (Section 47 of the Act)

 

b)         After execution of the public private agreement, subsequent contracts by the contractor must be in compliance with the Code, the Act and Department policies.

 

c)         The contractor's authority to negotiate and execute subsequent subcontracts with third parties will be included in the public private agreement. 

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)

 

Section 6.975  Disclosure of Proposal Contents

 

In accordance with the Code and the Freedom of Information Act [5 ILCS 140] and prior to execution of the public private agreement, all records relating to discussions or negotiations between the Department and short listed offerors will be treated as confidential.  Upon final execution of the public private agreement and each financing transaction required to provide funding, all proposals will be subject to possible disclosure under the Freedom of Information Act or federal disclosure laws, except to the extent that the information may be treated as confidential under those laws. 

 

(Source:  Added at 37 Ill. Reg. 15878, effective September 27, 2013)