HB0960eng 104TH GENERAL ASSEMBLY

HB0960 Engrossed LRB104 04862 SPS 14889 b

AN ACT concerning State government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Procurement Code is amended by changing Section 20-10 as follows:

(30 ILCS 500/20-10)

(Text of Section from P.A. 96-159, 96-588, 97-96, 97-895, 98-1076, 99-906, 100-43, 101-31, 101-657, 102-29, 103-558, and 103-564)

Sec. 20-10. Competitive sealed bidding; reverse auction.

(a) Conditions for use. All contracts shall be awarded by competitive sealed bidding except as otherwise provided in Section 20-5.

(b) Invitation for bids. An invitation for bids shall be issued and shall include a purchase description and the material contractual terms and conditions applicable to the procurement.

(c) Public notice. Public notice of the invitation for bids shall be published in the Illinois Procurement Bulletin at least 14 calendar days before the date set in the invitation for the opening of bids.

(d) Bid opening. Bids shall be opened publicly or through an electronic procurement system in the presence of one or more witnesses at the time and place designated in the invitation for bids. The name of each bidder, including earned and applied bid credit from the Illinois Works Jobs Program Act, the amount of each bid, and other relevant information as may be specified by rule shall be recorded. After the award of the contract, the winning bid and the record of each unsuccessful bid shall be open to public inspection.

(e) Bid acceptance and bid evaluation. Bids shall be unconditionally accepted without alteration or correction, except as authorized in this Code. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award, such as discounts, transportation costs, and total or life cycle costs, shall be objectively measurable. The invitation for bids shall set forth the evaluation criteria to be used.

(f) Correction or withdrawal of bids. Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of awards of contracts based on bid mistakes, shall be permitted in accordance with rules. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the State or fair competition shall be permitted. All decisions to permit the correction or withdrawal of bids based on bid mistakes shall be supported by written determination made by a State purchasing officer.

(g) Award. The contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids, except when a State purchasing officer determines it is not in the best interest of the State and by written explanation determines another bidder shall receive the award. The explanation shall appear in the appropriate volume of the Illinois Procurement Bulletin. The written explanation must include:

(1) a description of the agency's needs;

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

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

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

Each chief procurement officer may adopt guidelines to implement the requirements of this subsection (g).

The written explanation shall be filed with the Legislative Audit Commission, and the Commission on Equity and Inclusion, and the Procurement Policy Board, and be made available for inspection by the public, within 14 calendar days after the agency's decision to award the contract.

(g-5) Failed bid notice. In addition to the requirements of subsection (g), if a bidder has failed to be awarded a contract after 4 consecutive bids to provide the same services to the Department of Transportation, the Capital Development Board, or the Illinois State Toll Highway Authority, the applicable agency shall, in writing, detail why each of the 4 bids was not awarded to the bidder. The applicable agency shall submit by certified copy to the bidder the reason or reasons why each of the 4 bids was not awarded to the bidder. The agency shall submit that certified copy to the bidder within the same calendar quarter in which the fourth bid was rejected. This subsection does not apply if information pertaining to a failed bid was previously disclosed to a bidder by electronic means. If any agency chooses to provide information by electronic means, the agency shall have a written policy outlining how the agency will reasonably ensure the bidder receives the information. For the purposes of this subsection, "electronic means" means an email communication from the applicable agency to the bidder or a public posting on the applicable agency's procurement bulletin.

(h) Multi-step sealed bidding. When it is considered impracticable to initially prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.

(i) Alternative procedures. Notwithstanding any other provision of this Act to the contrary, the Director of the Illinois Power Agency may create alternative bidding procedures to be used in procuring professional services under Section 1-56, subsections (a) and (c) of Section 1-75 and subsection (d) of Section 1-78 of the Illinois Power Agency Act and Section 16-111.5(c) of the Public Utilities Act and to procure renewable energy resources under Section 1-56 of the Illinois Power Agency Act. These alternative procedures shall be set forth together with the other criteria contained in the invitation for bids, and shall appear in the appropriate volume of the Illinois Procurement Bulletin.

(j) Reverse auction. Notwithstanding any other provision of this Section and in accordance with rules adopted by the chief procurement officer, that chief procurement officer may procure supplies or services through a competitive electronic auction bidding process after the chief procurement officer determines that the use of such a process will be in the best interest of the State. The chief procurement officer shall publish that determination in his or her next volume of the Illinois Procurement Bulletin.

An invitation for bids shall be issued and shall include (i) a procurement description, (ii) all contractual terms, whenever practical, and (iii) conditions applicable to the procurement, including a notice that bids will be received in an electronic auction manner.

Public notice of the invitation for bids shall be given in the same manner as provided in subsection (c).

Bids shall be accepted electronically at the time and in the manner designated in the invitation for bids. During the auction, a bidder's price shall be disclosed to other bidders. Bidders shall have the opportunity to reduce their bid prices during the auction. At the conclusion of the auction, the record of the bid prices received and the name of each bidder shall be open to public inspection.

After the auction period has terminated, withdrawal of bids shall be permitted as provided in subsection (f).

The contract shall be awarded within 60 calendar days after the auction by written notice to the lowest responsible bidder, or all bids shall be rejected except as otherwise provided in this Code. Extensions of the date for the award may be made by mutual written consent of the State purchasing officer and the lowest responsible bidder.

This subsection does not apply to (i) procurements of professional and artistic services, (ii) telecommunications services, communication services, and information services, and (iii) contracts for construction projects, including design professional services.

(k) Catalog awards by market basket analysis. A contract for catalog supplies may be awarded pursuant to this Section using a market basket analysis to evaluate the lowest price a vendor can offer for a representative sample of catalog supplies. The award shall be made to the responsible and responsive bidder with the lowest cost for the representative sample, based on analysis of all available same items. The prices bid for each line item shall be firm and specified in the contract. Supplies offered by the bidder that are not evaluated as part of the market basket constitute the balance of the bidder's catalog. Line items shall be priced, categorized into distinct groups, and have a fixed discount by group. Only the catalog supplies offered in the bid may be specified in the contract. A contract awarded under this subsection shall include terms and conditions for (i) price changes for evaluated line items, (ii) substitution of evaluated line items, and (iii) the addition of catalog supplies that were not evaluated nor offered at the time of bid. The purchasing agency shall conduct semi-annual reviews of usage, substitutions, and items added or removed from the catalog.

As used in this subsection (k):

"Catalog supplies" means a defined list of items with verifiable prices that are categorized into distinct groups of like, similar, or the same supplies.

"Line item" means a separately identified supply with its own description, unit of measure, quantity, and price.

"Market basket analysis" means an evaluation of the cost of the representative sample of catalog supplies to determine the lowest cost bidder.

"Representative sample" means the line items that make up at least 75% of the supplies of the State's previous purchases based on all available data.

(Source: P.A. 102-29, eff. 6-25-21; 103-558, eff. 1-1-24; 103-564, eff. 11-17-23.)

(Text of Section from P.A. 96-159, 96-795, 97-96, 97-895, 98-1076, 99-906, 100-43, 101-31, 101-657, 102-29, 103-558, and 103-564)

Sec. 20-10. Competitive sealed bidding; reverse auction.

(a) Conditions for use. All contracts shall be awarded by competitive sealed bidding except as otherwise provided in Section 20-5.

(b) Invitation for bids. An invitation for bids shall be issued and shall include a purchase description and the material contractual terms and conditions applicable to the procurement.

(c) Public notice. Public notice of the invitation for bids shall be published in the Illinois Procurement Bulletin at least 14 calendar days before the date set in the invitation for the opening of bids.

(d) Bid opening. Bids shall be opened publicly or through an electronic procurement system in the presence of one or more witnesses at the time and place designated in the invitation for bids. The name of each bidder, including earned and applied bid credit from the Illinois Works Jobs Program Act, the amount of each bid, and other relevant information as may be specified by rule shall be recorded. After the award of the contract, the winning bid and the record of each unsuccessful bid shall be open to public inspection.

(e) Bid acceptance and bid evaluation. Bids shall be unconditionally accepted without alteration or correction, except as authorized in this Code. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award, such as discounts, transportation costs, and total or life cycle costs, shall be objectively measurable. The invitation for bids shall set forth the evaluation criteria to be used.

(f) Correction or withdrawal of bids. Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of awards of contracts based on bid mistakes, shall be permitted in accordance with rules. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the State or fair competition shall be permitted. All decisions to permit the correction or withdrawal of bids based on bid mistakes shall be supported by written determination made by a State purchasing officer.

(g) Award. The contract shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the invitation for bids, except when a State purchasing officer determines it is not in the best interest of the State and by written explanation determines another bidder shall receive the award. The explanation shall appear in the appropriate volume of the Illinois Procurement Bulletin. The written explanation must include:

(1) a description of the agency's needs;

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

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

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

Each chief procurement officer may adopt guidelines to implement the requirements of this subsection (g).

The written explanation shall be filed with the Legislative Audit Commission, and the Commission on Equity and Inclusion, and the Procurement Policy Board, and be made available for inspection by the public, within 14 days after the agency's decision to award the contract.

(g-5) Failed bid notice. In addition to the requirements of subsection (g), if a bidder has failed to be awarded a contract after 4 consecutive bids to provide the same services to the Department of Transportation, the Capital Development Board, or the Illinois State Toll Highway Authority, the applicable agency shall, in writing, detail why each of the 4 bids was not awarded to the bidder. The applicable agency shall submit by certified copy to the bidder the reason or reasons why each of the 4 bids was not awarded to the bidder. The agency shall submit that certified copy to the bidder within the same calendar quarter in which the fourth bid was rejected. This subsection does not apply if information pertaining to a failed bid was previously disclosed to a bidder by electronic means. If any agency chooses to provide information by electronic means, the agency shall have a written policy outlining how the agency will reasonably ensure the bidder receives the information. For the purposes of this subsection, "electronic means" means an email communication from the applicable agency to the bidder or a public posting on the applicable agency's procurement bulletin.

(h) Multi-step sealed bidding. When it is considered impracticable to initially prepare a purchase description to support an award based on price, an invitation for bids may be issued requesting the submission of unpriced offers to be followed by an invitation for bids limited to those bidders whose offers have been qualified under the criteria set forth in the first solicitation.

(i) Alternative procedures. Notwithstanding any other provision of this Act to the contrary, the Director of the Illinois Power Agency may create alternative bidding procedures to be used in procuring professional services under subsections (a) and (c) of Section 1-75 and subsection (d) of Section 1-78 of the Illinois Power Agency Act and Section 16-111.5(c) of the Public Utilities Act and to procure renewable energy resources under Section 1-56 of the Illinois Power Agency Act. These alternative procedures shall be set forth together with the other criteria contained in the invitation for bids, and shall appear in the appropriate volume of the Illinois Procurement Bulletin.

(j) Reverse auction. Notwithstanding any other provision of this Section and in accordance with rules adopted by the chief procurement officer, that chief procurement officer may procure supplies or services through a competitive electronic auction bidding process after the chief procurement officer determines that the use of such a process will be in the best interest of the State. The chief procurement officer shall publish that determination in his or her next volume of the Illinois Procurement Bulletin.

An invitation for bids shall be issued and shall include (i) a procurement description, (ii) all contractual terms, whenever practical, and (iii) conditions applicable to the procurement, including a notice that bids will be received in an electronic auction manner.

Public notice of the invitation for bids shall be given in the same manner as provided in subsection (c).

Bids shall be accepted electronically at the time and in the manner designated in the invitation for bids. During the auction, a bidder's price shall be disclosed to other bidders. Bidders shall have the opportunity to reduce their bid prices during the auction. At the conclusion of the auction, the record of the bid prices received and the name of each bidder shall be open to public inspection.

After the auction period has terminated, withdrawal of bids shall be permitted as provided in subsection (f).

The contract shall be awarded within 60 calendar days after the auction by written notice to the lowest responsible bidder, or all bids shall be rejected except as otherwise provided in this Code. Extensions of the date for the award may be made by mutual written consent of the State purchasing officer and the lowest responsible bidder.

This subsection does not apply to (i) procurements of professional and artistic services, (ii) telecommunications services, communication services, and information services, and (iii) contracts for construction projects, including design professional services.

(k) Catalog awards by market basket analysis. A contract for catalog supplies may be awarded pursuant to this Section using a market basket analysis to evaluate the lowest price a vendor can offer for a representative sample of catalog supplies. The award shall be made to the responsible and responsive bidder with the lowest cost for the representative sample, based on analysis of all available same items. The prices bid for each line item shall be firm and specified in the contract. Supplies offered by the bidder that are not evaluated as part of the market basket constitute the balance of the bidder's catalog. Line items shall be priced, categorized into distinct groups, and have a fixed discount by group. Only the catalog supplies offered in the bid may be specified in the contract. A contract awarded under this subsection shall include terms and conditions for (i) price changes for evaluated line items, (ii) substitution of evaluated line items, and (iii) the addition of catalog supplies that were not evaluated nor offered at the time of bid. The purchasing agency shall conduct semi-annual reviews of usage, substitutions, and items added or removed from the catalog.

As used in this subsection (k):

"Catalog supplies" means a defined list of items with verifiable prices that are categorized into distinct groups of like, similar, or the same supplies.

"Line item" means a separately identified supply with its own description, unit of measure, quantity, and price.

"Market basket analysis" means an evaluation of the cost of the representative sample of catalog supplies to determine the lowest cost bidder.

"Representative sample" means the line items that make up at least 75% of the supplies of the State's previous purchases based on all available data.

(Source: P.A. 102-29, eff. 6-25-21; 103-558, eff. 1-1-24; 103-564, eff. 11-17-23.)

Section 95. No acceleration or delay. Where this Act makes changes in a statute that is represented in this Act by text that is not yet or no longer in effect (for example, a Section represented by multiple versions), the use of that text does not accelerate or delay the taking effect of (i) the changes made by this Act or (ii) provisions derived from any other Public Act.