Section 990.110  Purpose

The Capital Development Board construction management agreements shall be awarded only to prequalified construction managers.  An applicant for prequalification must affirmatively demonstrate its responsibility.  In the absence of information clearly indicating that the applicant is responsible, CDB shall make a determination of non-responsibility.  Only responsible construction managers shall be prequalified and permitted to make submittals on CDB projects.

Section 990.120  Definitions

The following definitions shall apply to this Part:

"CDB" means the Capital Development Board, the agency.

"CM" means any individual, sole proprietorship, firm, partnership, corporation, or other legal entity providing construction management services.

"Consultant" means a firm or individual who will perform a portion of the contract or assist the CM in its performance of the contract under a contract with the CM.

"Contract" or "Contract Requirements" consist of any and all provisions of the CDB  Construction Management Contract (CMC).

"Key Person" means any individual who holds 5% or more ownership interest in the firm.  In the event the firm is owned by another corporation, partnership, trust or business association, any individual within that organization or who is a trust beneficiary who holds a 5% or more ownership or beneficial interest is considered a key person.  Regardless of ownership interest, any officer, partner, managing agent or director is considered a key person.  This definition also includes any individual who assumes the responsibility of an officer, owner, partner, director, etc., regardless of ownership interest. 

"Office Location" means all locations at which the CM provides construction management services.

"Parent Office" means the primary location of the CM's place of business.

"Performance Record" consists of, but is not limited to, the following:

Data indicating the CM has met all contract requirements on previous contracts, private and public.

Evidence of material compliance with all CDB contract requirements.

"Prequalification" is the status granted by CDB to responsible CMs that permits them to make submittals on CDB projects or to be awarded a CDB contract.

"Responsibility" is a determination made by CDB that the CM is a responsible CM.  The determination may be made at any time.  Because responsibility is affected by such things as financial resources, performance records, and organizational and operational factors, all of which are subject to change, the initial determination of responsibility, made through evaluation of an application to CDB, may be changed upon receipt of additional or different information.  The CM is required to inform CDB of any significant change to the information submitted in its application.  Each CM must provide CDB with adequate documentation of responsibility.  CDB will ordinarily provide forms for this information.  CDB may supplement this information from other sources and may require additional documentation at any time.  A responsibility determination may also be verified on an ongoing basis through other information, including but not limited to performance evaluations and reference contacts.

Section 990.130  Prequalification Required

CDB shall prequalify CMs as required by Article 33 of the Illinois Procurement Code [30 ILCS 500/Art. 33]. Firms must be prequalified prior to any submittal of qualifications or interest for a specific project and prior to entering a contractual relationship with CDB.  Prequalification shall be based upon a determination of responsibility from, but not limited to, the information supplied on a properly completed CDB prequalification application.

Section 990.140  Special Projects

a)         When CDB determines a construction project is so large or unique that a special CM responsibility determination is warranted, CDB may set appropriate standards of acceptability different from those set out in this Part, including the prequalification of CMs as part of submittals of statements of qualifications.  Other provisions of this Part shall remain applicable.

b)         A public notice will be posted on CDB's Procurement Bulletin (www.cdb.state.il.us) and may be published in the CMS Procurement Bulletin, in the official State newspaper or otherwise made available in print describing the project and any special prequalification requirements.

c)         The notice will be published at least 30 days before the date the special prequalification application or the statement of qualifications is due.

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

Section 990.150  Confidentiality 

Documents relating to responsibility determinations of a CM shall be maintained by CDB in a separate file and shall remain confidential as records pertaining to occupational registration, except that they shall be subject to complete disclosure to the CM to which they relate and to units of federal, State, or local government, including, but not limited to, law enforcement agencies.  Nothing in this Part shall be construed to mean that CDB is required to disclose to the CM the name of any person or organization filing a complaint or providing information to CDB when the complaint or information is used by CDB as the basis for further inquiry into the facts alleged.  CDB may release to anyone the CM prequalification status with CDB.  Notwithstanding the foregoing, neither the CM Performance Evaluations (CM PE) nor the CM's written responses to them shall be made available to any other person or firm.

Section 990.160  Sources for Determining Responsibility

To determine a CM's responsibility, CDB may utilize information obtained from one or more of the following sources.  In evaluating the information, greater consideration shall be given to the CM's most recent projects and projects with CDB.

a)         CM Prequalification Application Form

1)         CM applications shall require, at a minimum:

A)        Completed application form;

B)        The name of each key person associated with the firm, and that person's respective percentage of ownership;

C)        Relevant work experience; 

D)        Certification of compliance with statutory requirements;

E)        Work history reference checks.  References obtained may be verified and documented by the following methods:

i)          Telephone reference checks; or 

ii)         Reference questionnaire;

F)         CDB work history, if CDB projects have been awarded; and

G)        The applicant's phone and fax numbers and the firm's e-mail address.

2)         Application Updates

The CM shall have an affirmative duty to update significant information within 10 days after occurrence.  Failure to disclose as required may lead to action on prequalification.  (See Section 990.310(c).)  Significant changes of which CDB shall be notified include, but are not limited to:

A)        Change of entity corporate structure, including sole owners, partnerships, and federal employee identification number;

B)        Change of name;

C)        Change of address;

D)        Change or loss of key personnel;

E)        Minority/Female owned firm status;

F)         Loss of Secretary of State "good standing" status;

G)        Filing of bankruptcy;

H)        Filing of formal criminal charges against the firm or its officers, owners or employees;

I)         Suspension or debarment by another governmental agency; and

J)         Contract terminations.

b)         Satisfactory CDB Work History

CDB may review documentation of the CM's current and past work and performance history, including adherence to CDB's rules, resolutions, and procedures.  The documentation includes, but is not limited to, performance evaluations prepared by CDB, user agencies, or contractors.

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

2)         In addition to subsection (b)(1), CDB reserves the right to evaluate a firm during a project when performance issues warrant that action.

c)         Other Governmental Entities

CDB may conduct history reference checks by contacting federal, state or local governmental entities.

d)         Other Sources

In order to determine responsibility, CDB may conduct reference checks or gather relevant information from any other source, which may include, but is not limited to:

1)         Financial institutions;

2)         Periodicals;

3)         Newspapers;

4)         Court records;

5)         Dun and Bradstreet reports;

6)         Audited financial statements;

7)         Any type of public record.

e)         Previous Employment History

For any newly organized firm or a firm with a limited work history, CDB may conduct individual performance reference checks on any or all personnel.

f)         Additional Information

CDB may request additional information from the CM at any time.

Section 990.180  Prequalification of Firms and Office Locations

a)         The CM shall list all office locations on the prequalification application for which it seeks prequalification.  These office locations may be business subsidiaries, divisions, branches, etc., that provide construction management services under the responsibility of the CM.  CDB reserves the right to evaluate each office based on the criteria set forth within this Part.  Any offices not listed on applications shall not be deemed prequalified.

b)         Prequalification shall not apply to any other business location or entity of the CM solely because of an ownership relationship. 

Section 990.200  Processing of Construction Manager Prequalification Application    

a)         CMs must complete a prequalification application, including the Financial Interests and Potential Conflicts of Interest forms required under Section 50-35 of the Illinois Procurement Code [30 ILCS 500/50-35].

b)         Applications for renewal will ordinarily be sent to the CMs approximately 60 days before the expiration of current prequalification and are available electronically on CDB's Internet site at www.cdb.state.il.us.  CMs who do not receive an application are responsible for obtaining one. CMs must submit their completed applications at least 45 days prior to the expiration date of their prequalification.

c)         Processing of applications (either initial or renewal) by CDB will require up to 45 days after receipt of all requested information and a completed application.  When any information is incomplete or unsatisfactory, a longer processing time will be required.  CMs will be notified when information is incomplete or unsatisfactory.

d)         Unless otherwise specified in writing by CDB, the term of prequalification shall be two years from the end of the month the prequalification begins.  When prequalification is granted, the CM will be notified in writing of the expiration date, which will also be entered on CDB's electronic program.  CDB may grant a shorter term of prequalification by agreement with the CM, when a determination is made that a shorter period is justified, or when a special prequalification is developed specifically for a certain project.  Updated or new CM information including the term of prequalification will be entered on CDB's electronic program weekly.  At the beginning of each month, a list of CMs whose prequalification expires in approximately 60 days will be generated.

e)         Applications may be sent to CDB by facsimile or e-mail.

f)         CDB shall review and evaluate each application received, which may include one or more of the following actions:

1)         Reviewing to determine whether the application is complete;

2)         Contacting work references or any other possible sources of pertinent information;

3)         Requesting additional information from the applicant;

4)         Reviewing CDB CM performance evaluations; and

5)         Meeting with the applicant at the request of CDB or the applicant.

g)         The criteria to be evaluated include whether the CM has adequate resources.

1)         Whether the CM maintains and works from a separate conventional office that is not a residence to offices for other businesses.

2)         Whether the CM maintains a full-time office and staff.

3)         Whether key persons in the firm have an educational and work experience background that makes the key persons sufficiently expert and knowledgeable to carry out the work.

4)         Whether the CM has financial resources related to or generated by the construction businesses.

5)         Whether key persons in the firm are engaged in non-construction businesses.

h)         CDB shall grant prequalification to those applicants who:

1)         complete applications for prequalification;

2)                  have a history of satisfactorily performing construction management services, as confirmed by CDB through written reference checks or CDB performance evaluations;

3)                  have or are in the process of obtaining an Illinois Department of Human Rights number;

4)                  have staff that have experience performing construction manager services;

5)                  do not meet any of the criteria set forth in questions 18 through 23 of the application (violation of safety or environmental laws; conviction of bribery, etc.; bankruptcy; past suspension or debarment; student loan default); and

6)                  have been and are likely to be "responsible" as represented by negative findings for the criteria listed in Sections 990.310 and 990.330. 

i)          The fact that an applicant may be prequalified does not necessarily represent a finding of responsibility for a particular procurement. 

j)          CDB shall deny prequalification to any firm that has not affirmatively demonstrated its responsibility. 

k)         CDB's determination of responsibility shall be final.

Section 990.300  Actions Affecting Responsibility and Prequalification

At any time, CDB may consider whether an action is warranted concerning a CM's prequalification.  Actions that may be taken include one or more of the following:

a)         Interim or Emergency Suspension or Modification

CDB may summarily suspend or modify a CM's prequalification in accordance with Section 16 of the Capital Development Board Act [20 ILCS 3105/16].

b)         Debarment

CDB may debar a CM to exclude it from making submittals for CDB contracts as authorized by statute.  The period of debarment shall be not less than five years and may be permanent when warranted or as authorized by law [20 ILCS 3105/16].

c)         Modification of Prequalification

CDB may modify or restrict a CM's prequalification as appropriate, including, but not limited to, one or more of the following:

1)         Limiting the size or type of contracts for which a CM may submit proposals for a specified period of time, or until a current contract is substantially or fully complete.

2)         Limiting the number of CDB contracts a CM may enter into for a specified period of time, or until a current contract is substantially or fully complete.

3)         Limiting the aggregate dollar amount of contracts the CM may enter into with CDB.

4)         Imposing limits as set forth in this subsection (c) pending performance on the CM's next CDB contract in instances where the CM has no current CDB contracts.

d)         Conditional Prequalification

CDB may condition prequalification (which may be otherwise limited) on the CM's successful utilization of a management plan, evaluations, conferences, or other methods designed to achieve satisfactory performance or compliance with contract requirements.

e)         Suspension

CDB may suspend a CM firm or disqualify a CM firm temporarily from submitting for a CDB contract, for a period of time up to five years.  The CM's failure to timely pursue administrative action as provided by Subpart D of this Part shall constitute consent of the CM to CDB's action.

Section 990.310  Causes for Suspension, Debarment, Modification of Prequalification, and Conditional Prequalification

CDB may determine a CM is not responsible and suspend, debar or otherwise modify a prequalification or issue a conditional prequalification based upon one or more of the following:

a)         Failure to satisfactorily perform work on CDB contracts, private contracts, or other governmental contracts.  (See also Section 990.330.)

b)         Breach of the terms of a CDB contract, private contract, or other governmental contract.  (See also Section 990.330.)

c)         Making false or misleading statements or failing to disclose or update significant information in connection with CDB procedures or documents, including, but not limited to, the prequalification application.

d)         Violation of civil or criminal federal or State statutes or administrative rules and regulations.  In the case of criminal violations, indictment or filing of formal charges by information (complaint) shall constitute adequate evidence for a  determination of non-responsibility.

e)         Financial instability that may be evidenced by bankruptcy, failure to timely pay consultants, difficulty in obtaining acceptable insurance, attempts to assign contract proceeds, or other indications of serious business management deficiencies.

f)         Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards, that results in the extraordinary expenditure of CDB resources.

g)         Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or conduct indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a CM.

h)         Suspension, debarment, or limits on contracts by any other governmental body.

i)          Any other cause of so serious or compelling a nature that it affects the responsibility of a CM.

Section 990.320  Nullification of Prequalification

When CDB determines that a CM has knowingly made a material misrepresentation in its application for prequalification, the CM may not reapply to CDB for a period of three years from the date of the determination of material misrepresentation.

a)         CDB will notify the CM of the nullification.  The CM may, within 30 days after notification, submit a written explanation with supporting documentation for CDB's review.

b)         CDB may cancel awards or terminate any contracts awarded that were based upon the application with misrepresentations.

c)         A material misrepresentation is made by knowingly submitting any untrue, misleading or deceptive information or document containing such information, or by the concealment, suppression or omission of any information, in or from an application, that causes CDB to act differently than it would have if it had known the undisclosed or true information.

Section 990.330  Failure to Satisfactorily Perform Work on or Breach of the Terms of CDB Contracts, Private Contracts, or Other Governmental Contracts

CDB may take action upon prequalification for the CM's failure to satisfactorily perform work on or breach of the terms of CDB contracts private contracts, or other governmental contracts, such as, but not limited to, one or more of the following:

a)         Failure to timely submit required documents and drawings according to the project schedule, causing a delay in the commencement, completion or close out of a project.

b)         Failure to adhere to contractual document requirements.

c)         Failure to adequately or timely notify CDB of project problems or failure to cooperate with other parties to the project to timely resolve problems.

d)         Failure to timely or adequately submit budget and estimating documents.

e)         Failure to meet quality standards applicable to the industry (e.g., obtaining or maintaining nationally or regionally recognized certification).

f)         Failure to provide acceptable quality and quantity of staff to provide comprehensive project administration services, including field staff authorized to make timely field decisions on behalf of the firm.

g)         Failure to provide proper personnel to facilitate proper and timely responses to requests for information in the field.

h)         Failure to facilitate maintenance and submission of timely and adequate record drawings.

i)          Failure to timely process change orders and contractor pay requests.

j)          Failure to follow directives from CDB within the scope of the contract documents.

k)         Failure to attend or to be properly prepared for project meetings.

l)          Failure to understand, accept or utilize CDB procedures and standards, or abuse of CDB procedures and standards that results in paper delays, project delays, or the extraordinary expenditure of CDB resources.

m)        Failure to submit proper pay or modification requests, in accordance with the contractual provisions, with adequate documentation of costs and pricing within conventional industry parameters for public contracts.

n)         Failure to submit timely post-award documents, such as, but not limited to, bonds, certificates of insurance and MBE/FBE certifications.

o)         Failure to cooperate with other parties to the project to timely resolve project problems.

p)         Failure to meet the project schedule for any reason reasonably within the control of the CM.

q)         Any other cause of so serious or compelling a nature that it affects the responsibility of the CM.

Section 990.340  Interim or Emergency Suspension or Modification Pursuant to Section 16 of the Capital Development Board Act

a)         CDB may suspend or modify a CM's prequalification without a prior hearing or administrative procedure, as provided in Subpart D, for one or more of the following causes:

1)         The public interest, safety or welfare requires suspension or modification.

2)         An event or series of events, including, but not limited to:

A)        The filing of an indictment or of formal charges by information (complaint) charging the firm or a key person with the firm with a crime.

B)        Suspension or modification of a license or prequalification by another State agency, federal agency or other branch of government after hearing or by agreement.

C)        Failure to comply with applicable laws.

D)        Material breach of a contract, including, but not limited to, one or more of the causes set forth in Section 990.330.

E)        Failure to satisfactorily perform work on or breach of a CDB contract, including, but not limited to, one or more of the causes set forth in Section 990.330 when:

i)          The issue has been brought to the attention of firm management in writing;

ii)         All levels of CDB construction administration have met with firm representatives and discussed the issue;

iii)        CDB conveys to the CM what action or nonaction is necessary and in accordance with the contract documents;

iv)        The CM willfully and unreasonably refuses to comply or to obtain consultants, personnel, or other resources that would enable it to comply.

b)         When prequalification is suspended or modified pursuant to this Section, the CM will be notified in writing and, within 30 days after the notice, CDB will commence administrative procedures under Subpart D.

c)         When prequalification is suspended or modified pursuant to subsection  (a)(2)(E), if the CM cures the situation within 30 days after the notice, the suspension or modification will be rescinded by written notice to the CM.  If CDB determines the CM is making substantial progress toward a cure within 30 days after the notice, CDB may extend in writing the 30-day period by up to an additional 60 days.  If the CM cures the situation within the extended time period, the suspension or modification will be rescinded by written notice.  In any case, when suspension or modification is rescinded, it will be removed from the CM's prequalification record.  If the CM fails to cure the situation within 30 days or within the time extension, whichever is applicable, CDB will immediately commence administrative procedures under Subpart D.

Section 990.350  Denial of Prequalification

a)         This Section is applicable to CMs who are one of the following:

1)         First-time applicants for CDB prequalification.

2)         Firms that sent a renewal application that arrived at CDB after the prequalification expiration date or that could not reasonably be processed before the expiration date.

3)         Firms that sent a renewal application that was incomplete or insufficient, so that CDB could not reasonably process the application before the expiration date.

b)         CMs described in subsection (a) will be considered to be new applicants to CDB.  In the event that CDB denies prequalification or grants a conditional or modified prequalification, the CM may request administrative procedures under Subpart D, but shall not be entitled to an administrative hearing.

Section 990.400  General

Suspension, debarment, nullification of prequalification, modification of  prequalification,  issuance of conditional prequalification, or denial of prequalification by CDB is applicable to a CM's direct contracts with CDB, unless CDB determines otherwise in writing. 

Section 990.410  Violation of CDB Order

If a CM is subject to a CDB order suspending or debarring the CM, nullifying or modifying prequalification, making prequalification conditional, or denying prequalification, and the CM violates the order in any manner, including, but not limited to, continuing to make submittals or bid on CDB projects, CDB may extend the term of suspension, debarment, nullification, modification or conditional prequalification, or otherwise limit or condition the ability to make submittals or bid on contracts with CDB.

Section 990.420  Denial of Award of Contract

Notwithstanding any other provisions in this Part, if CDB finds a CM non-responsible, CDB may deny the CM the award of a contract.

Section 990.430  Debarment

CDB may debar a CM to exclude it from submitting on CDB projects.  CDB will consider debarment in cases so serious and egregious in nature that a permanent loss of submittal privileges may be warranted.  In addition to the causes listed in Section 990.310, causes for debarment may include, but not be limited to, multiple or repetitive criminal convictions or multiple non-responsibility determinations.  Following a period of debarment, when a CM submits a prequalification application to CDB, the application shall be deemed to be a first-time application rather than an application for renewal.  A firm that has been debarred as a contractor or A/E (architectural/engineering) firm will automatically be debarred as a CM firm, and vice versa.

Section 990.440  Reapplication for Prequalification

When a CM submits a prequalification application to CDB following a denial, or during or following a period of debarment, suspension, nullification, modification of prequalification,  or conditional prequalification, the CM must affirmatively demonstrate its responsibility, including demonstrating that the reason for the denial, or imposition of suspension, debarment, nullification, modification, or condition, has been remedied.

Section 990.450  Extension of CDB Action

The effect of an action imposed under this Subpart by CDB will extend to all affiliates, branches, subsidiaries, divisions, or parent firms of the CM and to any firm in which the CM or its key persons have a legal or beneficial interest, unless CDB determines otherwise in writing.

Section 990.460  Effect on Current Contracts

Current CDB contracts may be terminated when a CM is determined to be non-responsible and it is in the public interest to do so, whether or not the non-responsibility has a direct connection with the current contract.  Contracts may be terminated with or without further action on the CM's prequalification. 

Section 990.470  Basis of Decisions

a)         CDB shall make determinations as appropriate concerning the substance of a CM's business as opposed to its form and base its decisions on the substance.  When a CM attempts to evade the effects of a possible or actual finding of non-responsibility by changes of address, multiple addresses, changes in personnel or their titles, formation of new companies, or other devices, CDB may take action pursuant to Section 990.300 and Subparts B and C of this Part. 

b)         CMs that are newly formed business concerns having substantially the same owners, officers, directors, or beneficiaries as a previously existing non-responsible firm will be declared non-responsible unless the new organization can demonstrate it was not set up for the purpose of avoiding an earlier declaration of non-responsibility. 

Section 990.480  Settlement

Notwithstanding any provision of this Part, the parties to any contested matter concerning a CM's prequalification may at any time enter into an agreement to resolve responsibility issues by settlement.

Section 990.500  Review

When information that places a CM's responsibility in question comes to CDB's attention, CDB shall review the facts and documentation.  If further inquiry is desirable, it may do such further inquiry, which may result in an informal CDB conference with the CM and its appropriate staff members.

Section 990.510  Notice of CDB Action

Unless proceedings under Section 16 of the Capital Development Board Act [20 ILCS 3105/16] are justified, prior to suspending, conditioning, modifying or nullifying a CM's prequalification or debarring a CM, CDB will notify the CM in writing of its intention to take such action and the basis of the action, and will request that the CM attend an informal conference with CDB personnel.  The CM may bring to the conference any documents, personnel, or other pertinent information that it wishes CDB to consider.  The CM may bring its attorney to the conference, if desired.  Within a reasonable time in advance of the conference, CDB shall furnish the CM with all information in its possession that it deems pertinent and shall advise the CM in writing that it has the right to inspect its prequalification file.  Further conferences may be scheduled by agreement of CDB and the CM.  The CM's failure to appear at the conference shall be construed to indicate the CM does not wish to contest the matter, and rights to further administrative proceedings shall be forfeited.

Section 990.520  Executive Director Decision and Request for Reconsideration

Following CDB's conference with the CM, the conference committee shall forward a recommendation to the CDB Executive Director.  The CM will be notified in writing of the Executive Director's decision.  Within 15 days after receipt of the Executive Director's decision, the CM may request the Executive Director's reconsideration in writing, including as attachments any and all supporting evidence not previously submitted.  CDB shall respond to the request for reconsideration within 15 days after CDB's receipt.

Section 990.530  Hearings

Within 30 days after the CM's receipt of the Executive Director's decision on reconsideration, the CM may request a hearing in writing.  All administrative procedures in this Subpart D must be exhausted before CDB will consider the request for a hearing.  Hearings shall be conducted in accordance with Hearing Procedures (71 Ill. Adm. Code 100).

Section 990.540  Burden of Proof

a)         Any determination pursuant to this Part may be made when CDB possesses documentation of one or more of the factors described in Section 990.310, 990.320 or 990.410.

b)         Such documentation is the basis for a presumptive determination of non-responsibility.  The CM is entitled to rebut the presumption, through procedures described in this Subpart, but the presumption will not be overturned unless the CM shows, by a preponderance of the evidence, that each factor cited by CDB in support of its determination of non-responsibility is not present.  CDB's determinations are final and conclusive unless they are clearly erroneous, arbitrary, capricious or contrary to law.