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1 | AN ACT concerning State government.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The State Finance Act is amended by adding | ||||||
5 | Section 5.811 as follows: | ||||||
6 | (30 ILCS 105/5.811 new) | ||||||
7 | Sec. 5.811. The Public-Private Partnerships for | ||||||
8 | Transportation Fund. | ||||||
9 | Section 10. The Public-Private Partnerships for | ||||||
10 | Transportation Act is amended by changing Sections 10, 15, 20, | ||||||
11 | 25, 35, 40, and 45 and by adding Section 90 as follows: | ||||||
12 | (630 ILCS 5/10)
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13 | Sec. 10. Definitions. As used in this Act: | ||||||
14 | "Approved proposal" means the proposal that is approved by | ||||||
15 | the transportation agency pursuant to subsection (j) (e) of | ||||||
16 | Section 20 of this Act. | ||||||
17 | "Approved proposer" means the private entity whose | ||||||
18 | proposal is the approved proposal. | ||||||
19 | "Authority" means the Illinois State Toll Highway | ||||||
20 | Authority. | ||||||
21 | "Contractor" means a private entity that has entered into a |
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1 | public-private agreement with the transportation agency to | ||||||
2 | provide services to or on behalf of the transportation agency. | ||||||
3 | "Department" means the Illinois Department of | ||||||
4 | Transportation. | ||||||
5 | "Design-build agreement" means the agreement between the | ||||||
6 | selected private entity and the transportation agency under | ||||||
7 | which the selected private entity agrees to furnish design, | ||||||
8 | construction, and related services for a transportation | ||||||
9 | facility under this Act. | ||||||
10 | "Develop" or "development" means to do one or more of the | ||||||
11 | following: plan, design, develop, lease, acquire, install, | ||||||
12 | construct, reconstruct, rehabilitate, extend, or expand. | ||||||
13 | "Maintain" or "maintenance" includes ordinary maintenance, | ||||||
14 | repair, rehabilitation, capital maintenance, maintenance | ||||||
15 | replacement, and any other categories of maintenance that may | ||||||
16 | be designated by the transportation agency. | ||||||
17 | "Metropolitan planning organization" means a metropolitan | ||||||
18 | planning organization designated under 23 U.S.C. Section 134 | ||||||
19 | whose metropolitan planning area boundaries are partially or | ||||||
20 | completely within the State. | ||||||
21 | "Operate" or "operation" means to do one or more of the | ||||||
22 | following: maintain, improve, equip, modify, or otherwise | ||||||
23 | operate. | ||||||
24 | "Private entity" means any combination of one or more | ||||||
25 | individuals, corporations, general partnerships, limited | ||||||
26 | liability companies, limited partnerships, joint ventures, |
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1 | business trusts, nonprofit entities, or other business | ||||||
2 | entities that are parties to a proposal for a transportation | ||||||
3 | project or an agreement related to a transportation project. A | ||||||
4 | public agency may provide services to a contractor as a | ||||||
5 | subcontractor or subconsultant without affecting the private | ||||||
6 | status of the private entity and the ability to enter into a | ||||||
7 | public-private agreement. A transportation agency is not a | ||||||
8 | private entity. | ||||||
9 | "Proposal" means all materials and documents prepared by or | ||||||
10 | on behalf of a private entity relating to the proposed | ||||||
11 | development, financing, or operation of a transportation | ||||||
12 | facility as a transportation project. | ||||||
13 | "Proposer" means a private entity that has submitted a | ||||||
14 | proposal or statement of qualifications for a public-private | ||||||
15 | agreement in response to a request for proposals or a request | ||||||
16 | for qualifications issued by a transportation agency under this | ||||||
17 | Act. | ||||||
18 | "Public-private agreement" means the public-private | ||||||
19 | agreement between the contractor and the transportation agency | ||||||
20 | relating to one or more of the development, financing, or | ||||||
21 | operation of a transportation project that is entered into | ||||||
22 | under this Act. | ||||||
23 | "Request for information" means all materials and | ||||||
24 | documents prepared by or on behalf of the transportation agency | ||||||
25 | to solicit information from private entities with respect to | ||||||
26 | transportation projects. |
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1 | "Request for proposals" means all materials and documents | ||||||
2 | prepared by or on behalf of the transportation agency to | ||||||
3 | solicit proposals from private entities to enter into a | ||||||
4 | public-private agreement. | ||||||
5 | "Request for qualifications" means all materials and | ||||||
6 | documents prepared by or on behalf of the transportation agency | ||||||
7 | to solicit statements of qualification from private entities to | ||||||
8 | enter into a public-private agreement. | ||||||
9 | "Revenues" means all revenues, including any combination | ||||||
10 | of: income; earnings and interest; user fees; lease payments; | ||||||
11 | allocations; federal, State, and local appropriations, grants, | ||||||
12 | loans, lines of credit, and credit guarantees; bond proceeds; | ||||||
13 | equity investments; service payments; or other receipts; | ||||||
14 | arising out of or in connection with a transportation project, | ||||||
15 | including the development, financing, and operation of a | ||||||
16 | transportation project. The term includes money received as | ||||||
17 | grants, loans, lines of credit, credit guarantees, or otherwise | ||||||
18 | in aid of a transportation project from the federal government, | ||||||
19 | the State, a unit of local government, or any agency or | ||||||
20 | instrumentality of the federal government, the State, or a unit | ||||||
21 | of local government. | ||||||
22 | "Shortlist" means the process by which a transportation | ||||||
23 | agency will review, evaluate, and rank statements of | ||||||
24 | qualifications submitted in response to a request for | ||||||
25 | qualifications and then identify the proposers who are eligible | ||||||
26 | to submit a detailed proposal in response to a request for |
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1 | proposals. The identified proposers constitute the shortlist | ||||||
2 | for the transportation project to which the request for | ||||||
3 | proposals relates. | ||||||
4 | "Transportation agency" means (i) the Department or (ii) | ||||||
5 | the Authority. | ||||||
6 | "Transportation facility" means any new or existing road, | ||||||
7 | highway, toll highway, bridge, tunnel, intermodal facility, | ||||||
8 | intercity or high-speed passenger rail, or other | ||||||
9 | transportation facility or infrastructure, excluding airports, | ||||||
10 | under the jurisdiction of the Department or the Authority , | ||||||
11 | except those facilities for the Illiana Expressway . The term | ||||||
12 | "transportation facility" may refer to one or more | ||||||
13 | transportation facilities that are proposed to be developed or | ||||||
14 | operated as part of a single transportation project. | ||||||
15 | "Transportation project" or "project" means any or the | ||||||
16 | combination of the development, financing, or operation with | ||||||
17 | respect to all or a portion of any transportation facility | ||||||
18 | under the jurisdiction of the transportation agency , except | ||||||
19 | those facilities for the Illiana Expressway , undertaken | ||||||
20 | pursuant to this Act. | ||||||
21 | "Unit of local government" has the meaning ascribed to that | ||||||
22 | term in Article VII, Section 1 of the Constitution of the State | ||||||
23 | of Illinois and also means any unit designated as a municipal | ||||||
24 | corporation. | ||||||
25 | "User fees" or "tolls" means the rates, tolls, fees, or | ||||||
26 | other charges imposed by the contractor for use of all or a |
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1 | portion of a transportation project under a public-private | ||||||
2 | agreement.
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3 | (Source: P.A. 97-502, eff. 8-23-11.) | ||||||
4 | (630 ILCS 5/15)
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5 | Sec. 15. Formation of public-private agreements; project | ||||||
6 | planning. | ||||||
7 | (a) Each transportation agency may exercise the powers | ||||||
8 | granted by this Act to do some or all to develop, finance, and | ||||||
9 | operate any part of one or more transportation projects through | ||||||
10 | public-private agreements with one or more private entities , | ||||||
11 | except for transportation projects for the Illiana Expressway | ||||||
12 | as defined in the Public Private Agreements for the Illiana | ||||||
13 | Expressway Act . The net proceeds , if any, arising out of a | ||||||
14 | transportation project or public-private agreement undertaken | ||||||
15 | by the Department pursuant to this Act shall be deposited into | ||||||
16 | the Public-Private Partnerships for Transportation State | ||||||
17 | Construction Account Fund. The net proceeds arising out of a | ||||||
18 | transportation project or public-private agreement undertaken | ||||||
19 | by the Authority pursuant to this Act shall be deposited into | ||||||
20 | the Illinois State Toll Highway Authority Fund and shall be | ||||||
21 | used only as authorized by Section 23 of the Toll Highway Act. | ||||||
22 | (b) The Authority shall not enter into a public-private | ||||||
23 | agreement involving a lease or other transfer of any toll | ||||||
24 | highway, or portions thereof, under the Authority's | ||||||
25 | jurisdiction which were open to vehicular traffic on the |
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1 | effective date of this Act. The Authority shall not enter into | ||||||
2 | a public-private agreement for the purpose of making roadway | ||||||
3 | improvements, including but not limited to reconstruction, | ||||||
4 | adding lanes, and adding ramps, to any toll highway, or | ||||||
5 | portions thereof, under the Authority's jurisdiction which | ||||||
6 | were open to vehicular traffic on the effective date of this | ||||||
7 | Act. The Authority shall not use any revenue generated by any | ||||||
8 | toll highway, or portions thereof, under the Authority's | ||||||
9 | jurisdiction which were open to vehicular traffic on the | ||||||
10 | effective date of this Act to enter into or provide funding for | ||||||
11 | a public-private agreement. The Authority shall not use any | ||||||
12 | asset, or the proceeds from the sale or lease of any such | ||||||
13 | asset, which was owned by the Authority on the effective date | ||||||
14 | of this Act to enter into or provide funding for a | ||||||
15 | public-private agreement. The Authority may enter into a | ||||||
16 | public-private partnership to develop, finance, and operate | ||||||
17 | new toll highways authorized by the Governor and the General | ||||||
18 | Assembly pursuant to Section 14.1 of the Toll Highway Act, | ||||||
19 | non-highway transportation projects on the toll highway system | ||||||
20 | such as commuter rail or high-speed rail lines, and intelligent | ||||||
21 | transportation infrastructure that will enhance the safety, | ||||||
22 | efficiency, and environmental quality of the toll highway | ||||||
23 | system. The Authority may operate or provide operational | ||||||
24 | services such as toll collection on highways which are | ||||||
25 | developed or financed, or both, through a public-private | ||||||
26 | agreement entered into by another public entity , under an |
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1 | agreement with the public entity or contractor responsible for | ||||||
2 | the transportation project . | ||||||
3 | (c) A contractor has: | ||||||
4 | (1) all powers allowed by law generally to a private | ||||||
5 | entity having the same form of organization as the | ||||||
6 | contractor; and | ||||||
7 | (2) the power to develop, finance, and operate the | ||||||
8 | transportation facility and to impose user fees in | ||||||
9 | connection with the use of the transportation facility, | ||||||
10 | subject to the terms of the public-private agreement. | ||||||
11 | No tolls or user fees may be imposed by the contractor | ||||||
12 | except as set forth in a public-private agreement. | ||||||
13 | (d) Each year, at least 30 days prior to the beginning of | ||||||
14 | the transportation agency's fiscal year, and at other times the | ||||||
15 | transportation agency deems necessary, the Department and the | ||||||
16 | Authority shall submit for review to the General Assembly a | ||||||
17 | description of potential projects that the transportation | ||||||
18 | agency is considering undertaking under this Act. Any | ||||||
19 | submission from the Authority shall indicate which of its | ||||||
20 | potential projects, if any, will involve the proposer operating | ||||||
21 | the transportation facility for a period of one year or more. | ||||||
22 | Prior to the issuance of any request for qualifications or | ||||||
23 | request for proposals with respect to any potential project | ||||||
24 | undertaken by the Department or the Authority pursuant to | ||||||
25 | Section 20 of this Act, the commencement of a procurement | ||||||
26 | process for that particular potential project shall be |
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1 | authorized by joint resolution of the General Assembly. | ||||||
2 | (e) Each year, at least 30 days prior to the beginning of | ||||||
3 | the transportation agency's fiscal year, the transportation | ||||||
4 | agency shall submit a description of potential projects that | ||||||
5 | the transportation agency is considering undertaking under | ||||||
6 | this Act to each county, municipality, and metropolitan | ||||||
7 | planning organization, with respect to each project located | ||||||
8 | within its boundaries. | ||||||
9 | (f) Any project undertaken under this Act shall be subject | ||||||
10 | to all applicable planning requirements otherwise required by | ||||||
11 | law, including land use planning, regional planning, | ||||||
12 | transportation planning, and environmental compliance | ||||||
13 | requirements. | ||||||
14 | (g) Any new transportation facility developed as a project | ||||||
15 | under this Act must be consistent with the regional plan then | ||||||
16 | in existence of any metropolitan planning organization in whose | ||||||
17 | boundaries the project is located.
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18 | (h) The transportation agency shall hold one or more public | ||||||
19 | hearings within 30 days of each of its submittals to the | ||||||
20 | General Assembly under subsection (d) of this Section. These | ||||||
21 | public hearings shall address potential projects that the | ||||||
22 | transportation agency submitted to the General Assembly for | ||||||
23 | review under subsection (d). The transportation agency shall | ||||||
24 | publish a notice of the hearing or hearings at least 7 days | ||||||
25 | before a hearing takes place, and shall include the following | ||||||
26 | in the notice: (i) the date, time, and place of the hearing and |
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1 | the address of the transportation agency; (ii) a brief | ||||||
2 | description of the potential projects that the transportation | ||||||
3 | agency is considering undertaking; and (iii) a statement that | ||||||
4 | the public may comment on the potential projects. | ||||||
5 | (Source: P.A. 97-502, eff. 8-23-11.) | ||||||
6 | (630 ILCS 5/20)
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7 | Sec. 20. Procurement process. | ||||||
8 | (a) A transportation agency seeking to enter into a | ||||||
9 | public-private partnership with a private entity for the | ||||||
10 | development, finance, and operation of a transportation | ||||||
11 | facility as a transportation project shall determine and set | ||||||
12 | forth the criteria for the selection process. The | ||||||
13 | transportation agency shall use (i) a competitive sealed | ||||||
14 | bidding process, (ii) a competitive sealed proposal process, or | ||||||
15 | (iii) a design-build procurement process in accordance with | ||||||
16 | Section 25 of this Act. Before using one of these processes the | ||||||
17 | transportation agency may use a request for information to | ||||||
18 | obtain information relating to possible public-private | ||||||
19 | partnerships. | ||||||
20 | (b) If a transportation project will require the | ||||||
21 | performance of design work, the transportation agency shall use | ||||||
22 | the shortlist selection process set forth in subsection (g) of | ||||||
23 | this Section to evaluate and shortlist private entities based | ||||||
24 | on qualifications, including but not limited to design | ||||||
25 | qualifications. |
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1 | A request for qualifications, request for proposals, or | ||||||
2 | public-private agreement awarded to a contractor for a | ||||||
3 | transportation project shall require that any subsequent need | ||||||
4 | for architectural, engineering, or land surveying services | ||||||
5 | which arises after the submittal of the request for | ||||||
6 | qualifications or request for proposals or the awarding of the | ||||||
7 | public-private agreement shall be procured by the contractor | ||||||
8 | using a qualifications-based selection process consisting of: | ||||||
9 | (1) the publication of notice of availability of | ||||||
10 | services; | ||||||
11 | (2) a statement of desired qualifications; | ||||||
12 | (3) an evaluation based on the desired qualifications; | ||||||
13 | (4) the development of a shortlist ranking the firms in | ||||||
14 | order of qualifications; and | ||||||
15 | (5) negotiations with the ranked firms for a fair and | ||||||
16 | reasonable fee. | ||||||
17 | Compliance with the Architectural, Engineering, and Land | ||||||
18 | Surveying Qualifications Based Selection Act shall be deemed | ||||||
19 | prima facie compliance with this subsection (b). Every | ||||||
20 | transportation project contract shall include provisions | ||||||
21 | setting forth the requirements of this subsection (b). | ||||||
22 | (c) Prior to commencing a procurement for a transportation | ||||||
23 | project under this Act, the transportation agency shall notify | ||||||
24 | any other applicable public agency, including the Authority, in | ||||||
25 | all cases involving toll facilities where the Department would | ||||||
26 | commence the procurement, of its interest in undertaking the |
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1 | procurement and shall provide the other public agency or | ||||||
2 | agencies with an opportunity to offer to develop and implement | ||||||
3 | the transportation project. The transportation agency shall | ||||||
4 | supply the other public agency or agencies with no less than | ||||||
5 | the same level and type of information concerning the project | ||||||
6 | that the transportation agency would supply to private entities | ||||||
7 | in the procurement, unless that information is not then | ||||||
8 | available, in which case the transportation agency shall supply | ||||||
9 | the other public agency or agencies with the maximum amount of | ||||||
10 | relevant information about the project as is then reasonably | ||||||
11 | available. The transportation agency shall make available to | ||||||
12 | the other public agencies the same subsidies, benefits, | ||||||
13 | concessions, and other consideration that it intends to make | ||||||
14 | available to the private entities in the procurement. | ||||||
15 | The public agencies shall have a maximum period of 60 days | ||||||
16 | to review the information about the proposed transportation | ||||||
17 | project and to respond to the transportation agency in writing | ||||||
18 | to accept or reject the opportunity to develop and implement | ||||||
19 | the transportation project. If a public agency rejects the | ||||||
20 | opportunity during the 60-day period, then the public agency | ||||||
21 | may not participate in the procurement for the proposed | ||||||
22 | transportation project by submitting a proposal of its own. If | ||||||
23 | a public agency fails to accept or reject this opportunity in | ||||||
24 | writing within the 60-day period, it shall be deemed to have | ||||||
25 | rejected the opportunity. | ||||||
26 | If a public agency accepts the opportunity within the |
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1 | 60-day period, then the public agency shall have up to 120 days | ||||||
2 | (or a longer period, if extended by the transportation agency), | ||||||
3 | to (i) submit to the transportation agency a reasonable plan | ||||||
4 | for development of the transportation project; (ii) if | ||||||
5 | applicable, make an offer of reasonable consideration for the | ||||||
6 | opportunity to undertake the transportation project; and (iii) | ||||||
7 | negotiate a mutually acceptable intergovernmental agreement | ||||||
8 | with the transportation agency that facilitates the | ||||||
9 | development of the transportation project and requires that the | ||||||
10 | transportation agency follow its procurement procedures under | ||||||
11 | the Illinois Procurement Code and applicable rules rather than | ||||||
12 | this Act. In considering whether a public agency's plan for | ||||||
13 | developing and implementing the project is reasonable, the | ||||||
14 | transportation agency shall consider the public agency's | ||||||
15 | history of developing and implementing similar projects, the | ||||||
16 | public agency's current capacity to develop and implement the | ||||||
17 | proposed project, the user charges, if any, contemplated by the | ||||||
18 | public agency's plan and how these user charges compare with | ||||||
19 | user charges that would be imposed by a private entity | ||||||
20 | developing and implementing the same project, the project | ||||||
21 | delivery schedule proposed by the public agency, and other | ||||||
22 | reasonable factors that are necessary, including consideration | ||||||
23 | of risks and whether subsidy costs may be reduced, to determine | ||||||
24 | whether development and implementation of the project by the | ||||||
25 | public agency is in the best interest of the people of this | ||||||
26 | State. |
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1 | (d) If the transportation agency rejects or fails to | ||||||
2 | negotiate mutually acceptable terms regarding a public | ||||||
3 | agency's plan for developing and implementing the | ||||||
4 | transportation project during the 120-day period described in | ||||||
5 | subsection (c), then the public agency may not participate in | ||||||
6 | the procurement for the proposed transportation project by | ||||||
7 | submitting a proposal of its own. Following a rejection or | ||||||
8 | failure to reach agreement regarding a public agency's plan, if | ||||||
9 | the transportation agency later proceeds with a procurement in | ||||||
10 | which it materially changes (i) the nature or scope of the | ||||||
11 | project; (ii) any subsidies, benefits, concessions, or other | ||||||
12 | significant project-related considerations made available to | ||||||
13 | the bidders; or (iii) any other terms of the project, as | ||||||
14 | compared to when the transportation agency supplied | ||||||
15 | information about the project to public agencies under | ||||||
16 | subsection (c), then the transportation agency shall give | ||||||
17 | public agencies another opportunity in accordance with | ||||||
18 | subsection (c) to provide proposals for developing and | ||||||
19 | implementing the project. | ||||||
20 | (e) Nothing in this Section 20 requires a transportation | ||||||
21 | agency to go through a procurement process prior to developing | ||||||
22 | and implementing a project through a public agency as described | ||||||
23 | in subsection (c). | ||||||
24 | The selection of professional design firms by a | ||||||
25 | transportation agency or private entity shall comply with the | ||||||
26 | Architectural, Engineering, and Land Surveying Qualifications |
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1 | Based Selection Act or Section 25 of this Act. | ||||||
2 | Nothing in this Act shall preclude a public agency, | ||||||
3 | including the Department or the Authority, from submitting a | ||||||
4 | proposal to develop or operate, or to develop and operate, a | ||||||
5 | transportation facility as a transportation project. The | ||||||
6 | transportation agency shall give a proposal submitted by a | ||||||
7 | public agency equal consideration as it gives proposals | ||||||
8 | submitted by private entities, and, for that purpose, treat the | ||||||
9 | public agency as a private entity. | ||||||
10 | (f) All procurement processes shall incorporate | ||||||
11 | requirements and set forth goals for participation by | ||||||
12 | disadvantaged business enterprises as allowed under State and | ||||||
13 | federal law. | ||||||
14 | (g) (b) The transportation agency shall establish a process | ||||||
15 | to shortlist for prequalification of all potential private | ||||||
16 | entities. The transportation agency shall: (i) provide a public | ||||||
17 | notice of the shortlisting prequalification process for such | ||||||
18 | period as deemed appropriate by the agency; (ii) set forth | ||||||
19 | requirements and evaluation criteria in a request for | ||||||
20 | qualifications order to become prequalified ; (iii) develop a | ||||||
21 | shortlist by determining determine which private entities that | ||||||
22 | have submitted statements of qualification prequalification | ||||||
23 | applications , if any, meet the minimum requirements and best | ||||||
24 | satisfy the evaluation criteria set forth in the request for | ||||||
25 | qualifications ; and (iv) allow only those entities , or groups | ||||||
26 | of entities such as unincorporated joint ventures, that have |
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1 | been shortlisted prequalified to submit proposals or bids. | ||||||
2 | Throughout the procurement period and as necessary following | ||||||
3 | the award of a contract, the The transportation agency shall | ||||||
4 | make publicly available on its website during the request for | ||||||
5 | qualifications period information regarding firms that are | ||||||
6 | prequalified by the transportation agency pursuant to Section | ||||||
7 | 20 of the Architectural, Engineering, and Land Surveying | ||||||
8 | Qualifications Based Selection Act to provide architectural, | ||||||
9 | engineering, and land surveying services . The transportation | ||||||
10 | agencies and shall require private entities to use firms | ||||||
11 | prequalified under this Act to provide architectural, | ||||||
12 | engineering, and land surveying services. Firms identified to | ||||||
13 | provide architectural, engineering, and land surveying | ||||||
14 | services in a statement of qualifications shall be prequalified | ||||||
15 | under the Act to provide the identified services prior to the | ||||||
16 | transportation agency's award of the contract the use of such | ||||||
17 | firms for such services . | ||||||
18 | (h) (c) Competitive sealed bidding requirements: | ||||||
19 | (1) All contracts shall be awarded by competitive | ||||||
20 | sealed bidding except as otherwise provided in subsection | ||||||
21 | (i) (d) of this Section and Section 25 of this Act. | ||||||
22 | (2) An invitation for bids shall be issued and shall | ||||||
23 | include a description of the public-private partnership | ||||||
24 | with a private entity for the development, finance, and | ||||||
25 | operation of a transportation facility as a transportation | ||||||
26 | project, and the material contractual terms and conditions |
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1 | applicable to the procurement. | ||||||
2 | (3) Public notice of the invitation for bids shall be | ||||||
3 | published in the State of Illinois Procurement Bulletin at | ||||||
4 | least 21 days before the date set in the invitation for the | ||||||
5 | opening of bids. | ||||||
6 | (4) Bids shall be opened publicly in the presence of | ||||||
7 | one or more witnesses at the time and place designated in | ||||||
8 | the invitation for bids. The name of each bidder, the | ||||||
9 | amount of each bid, and other relevant information as may | ||||||
10 | be specified by rule shall be recorded. After the award of | ||||||
11 | the contract, the winning bid and the record of each | ||||||
12 | unsuccessful bid shall be open to public inspection. | ||||||
13 | (5) Bids shall be unconditionally accepted without | ||||||
14 | alteration or correction, except as authorized in this Act. | ||||||
15 | Bids shall be evaluated based on the requirements set forth | ||||||
16 | in the invitation for bids, which may include criteria to | ||||||
17 | determine acceptability such as inspection, testing, | ||||||
18 | quality, workmanship, delivery, and suitability for a | ||||||
19 | particular purpose. Those criteria that will affect the bid | ||||||
20 | price and be considered in evaluation for award, such as | ||||||
21 | discounts, transportation costs, and total or life cycle | ||||||
22 | costs, shall be objectively measurable. The invitation for | ||||||
23 | bids shall set forth the evaluation criteria to be used. | ||||||
24 | (6) Correction or withdrawal of inadvertently | ||||||
25 | erroneous bids before or after award, or cancellation of | ||||||
26 | awards of contracts based on bid mistakes, shall be |
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1 | permitted in accordance with rules. After bid opening, no | ||||||
2 | changes in bid prices or other provisions of bids | ||||||
3 | prejudicial to the interest of the State or fair | ||||||
4 | competition shall be permitted. All decisions to permit the | ||||||
5 | correction or withdrawal of bids based on bid mistakes | ||||||
6 | shall be supported by written determination made by the | ||||||
7 | transportation agency. | ||||||
8 | (7) The contract shall be awarded with reasonable | ||||||
9 | promptness by written notice to the lowest responsible and | ||||||
10 | responsive bidder whose bid meets the requirements and | ||||||
11 | criteria set forth in the invitation for bids, except when | ||||||
12 | the transportation agency determines it is not in the best | ||||||
13 | interest of the State and by written explanation determines | ||||||
14 | another bidder shall receive the award. The explanation | ||||||
15 | shall appear in the appropriate volume of the State of | ||||||
16 | Illinois Procurement Bulletin. The written explanation | ||||||
17 | must include: | ||||||
18 | (A) a description of the agency's needs; | ||||||
19 | (B) a determination that the anticipated cost will | ||||||
20 | be fair and reasonable; | ||||||
21 | (C) a listing of all responsible and responsive | ||||||
22 | bidders; and | ||||||
23 | (D) the name of the bidder selected, pricing, and | ||||||
24 | the reasons for selecting that bidder. | ||||||
25 | (8) When it is considered impracticable to initially | ||||||
26 | prepare a purchase description to support an award based on |
| |||||||
| |||||||
1 | price, an invitation for bids may be issued requesting the | ||||||
2 | submission of unpriced offers to be followed by an | ||||||
3 | invitation for bids limited to those bidders whose offers | ||||||
4 | have been qualified under the criteria set forth in the | ||||||
5 | first solicitation. | ||||||
6 | (i) (d) Competitive sealed proposal requirements: | ||||||
7 | (1) When the transportation agency determines in | ||||||
8 | writing that the use of competitive sealed bidding or | ||||||
9 | design-build procurement is either not practicable or not | ||||||
10 | advantageous to the State, a contract may be entered into | ||||||
11 | by competitive sealed proposals. | ||||||
12 | (2) Proposals shall be solicited through a request for | ||||||
13 | proposals. | ||||||
14 | (3) Public notice of the request for proposals shall be | ||||||
15 | published in the State of Illinois Procurement Bulletin at | ||||||
16 | least 21 days before the date set in the invitation for the | ||||||
17 | opening of proposals. | ||||||
18 | (4) Proposals shall be opened publicly in the presence | ||||||
19 | of one or more witnesses at the time and place designated | ||||||
20 | in the request for proposals, but proposals shall be opened | ||||||
21 | in a manner to avoid disclosure of contents to competing | ||||||
22 | offerors during the process of negotiation. A record of | ||||||
23 | proposals shall be prepared and shall be open for public | ||||||
24 | inspection after contract award. | ||||||
25 | (5) The requests for proposals shall state the relative | ||||||
26 | importance of price and other evaluation factors. |
| |||||||
| |||||||
1 | Proposals shall be submitted in 2 parts: (i) covering items | ||||||
2 | except price; and (ii) covering price. The first part of | ||||||
3 | all proposals shall be evaluated and ranked independently | ||||||
4 | of the second part of all proposals. | ||||||
5 | (6) As provided in the request for proposals and under | ||||||
6 | any applicable rules, discussions may be conducted with | ||||||
7 | responsible offerors who submit proposals determined to be | ||||||
8 | reasonably susceptible of being selected for award for the | ||||||
9 | purpose of clarifying and assuring full understanding of | ||||||
10 | and responsiveness to the solicitation requirements. Those | ||||||
11 | offerors shall be accorded fair and equal treatment with | ||||||
12 | respect to any opportunity for discussion and revision of | ||||||
13 | proposals. Revisions may be permitted after submission and | ||||||
14 | before award for the purpose of obtaining best and final | ||||||
15 | offers. In conducting discussions there shall be no | ||||||
16 | disclosure of any information derived from proposals | ||||||
17 | submitted by competing offerors. If information is | ||||||
18 | disclosed to any offeror, it shall be provided to all | ||||||
19 | competing offerors. | ||||||
20 | (7) Awards shall be made to the responsible offeror | ||||||
21 | whose proposal is determined in writing to be the most | ||||||
22 | advantageous to the State, taking into consideration price | ||||||
23 | and the evaluation factors set forth in the request for | ||||||
24 | proposals. The contract file shall contain the basis on | ||||||
25 | which the award is made. | ||||||
26 | (j) (e) In the case of a proposal or proposals to the |
| |||||||
| |||||||
1 | Department or the Authority, the transportation agency shall | ||||||
2 | determine, based on its review and evaluation of the proposal | ||||||
3 | or proposals received in response to the request for proposals, | ||||||
4 | which one or more proposals, if any, best serve the public | ||||||
5 | purpose of this Act and satisfy the criteria set forth in the | ||||||
6 | request for proposals and, with respect to such proposal or | ||||||
7 | proposals, shall: | ||||||
8 | (1) submit the proposal or proposals to the Commission | ||||||
9 | on Government Forecasting and Accountability, which, | ||||||
10 | within 20 days of submission by the transportation agency, | ||||||
11 | shall complete a review of the proposal or proposals and | ||||||
12 | report on the value of the proposal or proposals to the | ||||||
13 | State; | ||||||
14 | (2) hold one or more public hearings on the proposal or | ||||||
15 | proposals, publish notice of the hearing or hearings at | ||||||
16 | least 7 days before the hearing, and include the following | ||||||
17 | in the notice: (i) the date, time, and place of the hearing | ||||||
18 | and the address of the transportation agency, (ii) the | ||||||
19 | subject matter of the hearing, (iii) a description of the | ||||||
20 | agreement to be awarded, (iv) the determination made by the | ||||||
21 | transportation agency that such proposal or proposals best | ||||||
22 | serve the public purpose of this Act and satisfy the | ||||||
23 | criteria set forth in the request for proposals, and (v) | ||||||
24 | that the public may be heard on the proposal or proposals | ||||||
25 | during the public hearing; and | ||||||
26 | (3) determine whether or not to recommend to the |
| |||||||
| |||||||
1 | Governor that the Governor approve the proposal or | ||||||
2 | proposals. | ||||||
3 | The Governor may approve one or more proposals recommended | ||||||
4 | by the Department or the Authority based upon the review, | ||||||
5 | evaluation, and recommendation of the transportation agency, | ||||||
6 | the review and report of the Commission on Government | ||||||
7 | Forecasting and Accountability, the public hearing, and the | ||||||
8 | best interests of the State. | ||||||
9 | (k) (f) In addition to any other rights under this Act, in | ||||||
10 | connection with any procurement under this Act, the following | ||||||
11 | rights are reserved to each transportation agency: | ||||||
12 | (1) to withdraw a request for information, a request | ||||||
13 | for qualifications, or a request for proposals at any time, | ||||||
14 | and to publish a new request for information, request for | ||||||
15 | qualifications, or request for proposals; | ||||||
16 | (2) to not approve a proposal for any reason; | ||||||
17 | (3) to not award a public-private agreement for any | ||||||
18 | reason; | ||||||
19 | (4) to request clarifications to any statement of | ||||||
20 | information, qualifications, or proposal received, to seek | ||||||
21 | one or more revised proposals or one or more best and final | ||||||
22 | offers, or to conduct negotiations with one or more private | ||||||
23 | entities that have submitted proposals; | ||||||
24 | (5) to modify, during the pendency of a procurement, | ||||||
25 | the terms, provisions, and conditions of a request for | ||||||
26 | information, request for qualifications, or request for |
| |||||||
| |||||||
1 | proposals or the technical specifications or form of a | ||||||
2 | public-private agreement; | ||||||
3 | (6) to interview proposers; and | ||||||
4 | (7) any other rights available to the transportation | ||||||
5 | agency under applicable law and regulations. | ||||||
6 | (l) (g) If a proposal is approved, the transportation | ||||||
7 | agency shall execute the public-private agreement, publish | ||||||
8 | notice of the execution of the public-private agreement on its | ||||||
9 | website and in a newspaper or newspapers of general circulation | ||||||
10 | within the county or counties in which the transportation | ||||||
11 | project is to be located, and publish the entire agreement on | ||||||
12 | its website. Any action to contest the validity of a | ||||||
13 | public-private agreement entered into under this Act must be | ||||||
14 | brought no later than 60 days after the date of publication of | ||||||
15 | the notice of execution of the public-private agreement. | ||||||
16 | (m) (h) For any transportation project with an estimated | ||||||
17 | construction cost of over $50,000,000, the transportation | ||||||
18 | agency may also require the approved proposer to pay the costs | ||||||
19 | for an independent audit of any and all traffic and cost | ||||||
20 | estimates associated with the approved proposal, as well as a | ||||||
21 | review of all public costs and potential liabilities to which | ||||||
22 | taxpayers could be exposed (including improvements to other | ||||||
23 | transportation facilities that may be needed as a result of the | ||||||
24 | approved proposal, failure by the approved proposer to | ||||||
25 | reimburse the transportation agency for services provided, and | ||||||
26 | potential risk and liability in the event the approved proposer |
| |||||||
| |||||||
1 | defaults on the public-private agreement or on bonds issued for | ||||||
2 | the project). If required by the transportation agency, this | ||||||
3 | independent audit must be conducted by an independent | ||||||
4 | consultant selected by the transportation agency, and all | ||||||
5 | information from the review must be fully disclosed. | ||||||
6 | (n) (i) The transportation agency may also apply for, | ||||||
7 | execute, or endorse applications submitted by private entities | ||||||
8 | to obtain federal credit assistance for qualifying projects | ||||||
9 | developed or operated pursuant to this Act.
| ||||||
10 | (Source: P.A. 97-502, eff. 8-23-11.) | ||||||
11 | (630 ILCS 5/25)
| ||||||
12 | Sec. 25. Design-build procurement. | ||||||
13 | (a) This Section 25 shall apply only to transportation | ||||||
14 | projects for which the Department or the Authority intends to | ||||||
15 | execute a design-build agreement, in which case the Department | ||||||
16 | or the Authority shall abide by the requirements and procedures | ||||||
17 | of this Section 25 in addition to other applicable requirements | ||||||
18 | and procedures set forth in this Act. | ||||||
19 | (b)(1) The transportation agency must issue a notice of | ||||||
20 | intent to receive proposals for the project at least 14 days | ||||||
21 | before issuing the request for the qualifications. The | ||||||
22 | transportation agency must publish the advance notice in a | ||||||
23 | daily newspaper of general circulation in the county where the | ||||||
24 | transportation agency is located. The transportation agency is | ||||||
25 | encouraged to use publication of the notice in related |
| |||||||
| |||||||
1 | construction industry service publications. A brief | ||||||
2 | description of the proposed procurement must be included in the | ||||||
3 | notice. The transportation agency must provide a copy of the | ||||||
4 | request for qualifications to any party requesting a copy. | ||||||
5 | (2) The request for qualifications shall be prepared for | ||||||
6 | each project and must contain, without limitation, the | ||||||
7 | following information: (i) the name of the transportation | ||||||
8 | agency; (ii) a preliminary schedule for the completion of the | ||||||
9 | contract; (iii) the proposed budget for the project and , the | ||||||
10 | source of funds, to the extent not already reflected in the | ||||||
11 | Department's Multi-Year Highway Improvement Program and the | ||||||
12 | currently available funds at the time the request for proposal | ||||||
13 | is submitted ; (iv) the shortlisting process prequalification | ||||||
14 | criteria for design-build entities or groups of entities such | ||||||
15 | as unincorporated joint ventures wishing to submit proposals | ||||||
16 | (the transportation agency shall include, at a minimum, its | ||||||
17 | normal prequalification, licensing, registration, and other | ||||||
18 | requirements, but nothing contained herein precludes the use of | ||||||
19 | additional prequalification criteria by the transportation | ||||||
20 | agency); (v) a summary of anticipated material requirements of | ||||||
21 | the contract, including but not limited to, the proposed terms | ||||||
22 | and conditions, required performance and payment bonds, | ||||||
23 | insurance, and the entity's plan to comply with the utilization | ||||||
24 | goals established by the corporate authorities of the | ||||||
25 | transportation agency for minority and women business | ||||||
26 | enterprises and compliance to comply with Section 2-105 of the |
| |||||||
| |||||||
1 | Illinois Human Rights Act; and (vi) the performance criteria; | ||||||
2 | (vii) the evaluation criteria for each phase of the | ||||||
3 | solicitation; and (viii) the anticipated number of entities | ||||||
4 | that will be shortlisted considered for the request for | ||||||
5 | proposals phase. | ||||||
6 | (3) The transportation agency may include any other | ||||||
7 | relevant information in the request for qualifications that it | ||||||
8 | chooses to supply. The private entity shall be entitled to rely | ||||||
9 | upon the accuracy of this documentation in the development of | ||||||
10 | its statement of qualifications and its proposal only to the | ||||||
11 | extent expressly warranted by the transportation agency . | ||||||
12 | (4) The date that statements of qualifications are due must | ||||||
13 | be at least 21 calendar days after the date of the issuance of | ||||||
14 | the request for qualifications. In the event the cost of the | ||||||
15 | project is estimated to exceed $12,000,000, then the statement | ||||||
16 | of qualifications due date must be at least 28 calendar days | ||||||
17 | after the date of the issuance of the request for | ||||||
18 | qualifications. The transportation agency shall include in the | ||||||
19 | request for proposals a minimum of 30 days to develop the | ||||||
20 | proposals after the selection of entities from the evaluation | ||||||
21 | of the statements of qualifications is completed. | ||||||
22 | (c)(1) The transportation agency shall develop, with the | ||||||
23 | assistance of a licensed design professional, the request for | ||||||
24 | qualifications and the request for proposals, which shall | ||||||
25 | include scope and performance criteria. The scope and | ||||||
26 | performance criteria must be in sufficient detail and contain |
| |||||||
| |||||||
1 | adequate information to reasonably apprise the private | ||||||
2 | entities of the transportation agency's overall programmatic | ||||||
3 | needs and goals, including criteria and preliminary design | ||||||
4 | plans, general budget parameters, schedule, and delivery | ||||||
5 | requirements. | ||||||
6 | (2) Each request for qualifications and request for | ||||||
7 | proposals shall also include a description of the level of | ||||||
8 | design to be provided in the proposals. This description must | ||||||
9 | include the scope and type of renderings, drawings, and | ||||||
10 | specifications that, at a minimum, will be required by the | ||||||
11 | transportation agency to be produced by the private entities. | ||||||
12 | (3) The scope and performance criteria shall be prepared by | ||||||
13 | a design professional who is an employee of the transportation | ||||||
14 | agency, or the transportation agency may contract with an | ||||||
15 | independent design professional selected under the | ||||||
16 | Architectural, Engineering, and Land Surveying Qualifications | ||||||
17 | Based Selection Act to provide these services. | ||||||
18 | (4) The design professional that prepares the scope and | ||||||
19 | performance criteria is prohibited from participating in any | ||||||
20 | private entity proposal for the project. | ||||||
21 | (d)(1) The transportation agency must use a two phase | ||||||
22 | procedure for the selection of the successful design-build | ||||||
23 | entity. The request for qualifications phase will evaluate and | ||||||
24 | shortlist the private entities based on qualifications, and the | ||||||
25 | request for proposals will evaluate the technical and cost | ||||||
26 | proposals. |
| |||||||
| |||||||
1 | (2) The transportation agency shall include in the request | ||||||
2 | for qualifications the evaluating factors to be used in the | ||||||
3 | request for qualifications phase. These factors are in addition | ||||||
4 | to any prequalification requirements of private entities that | ||||||
5 | the transportation agency has set forth. Each request for | ||||||
6 | qualifications shall establish the relative importance | ||||||
7 | assigned to each evaluation factor and subfactor , including any | ||||||
8 | weighting of criteria to be employed by the transportation | ||||||
9 | agency. The transportation agency must maintain a record of the | ||||||
10 | evaluation scoring to be disclosed in event of a protest | ||||||
11 | regarding the solicitation. | ||||||
12 | The transportation agency shall include the following | ||||||
13 | criteria in every request for qualifications phase evaluation | ||||||
14 | of private entities: (i) experience of personnel; (ii) | ||||||
15 | successful experience with similar project types; (iii) | ||||||
16 | financial capability; (iv) timeliness of past performance; (v) | ||||||
17 | experience with similarly sized projects; (vi) successful | ||||||
18 | reference checks of the firm; (vii) commitment to assign | ||||||
19 | personnel for the duration of the project and qualifications of | ||||||
20 | the entity's consultants; and (viii) ability or past | ||||||
21 | performance in meeting or exhausting good faith efforts to meet | ||||||
22 | the utilization goals for business enterprises established in | ||||||
23 | the Business Enterprise for Minorities, Females, and Persons | ||||||
24 | with Disabilities Act and in complying with Section 2-105 of | ||||||
25 | the Illinois Human Rights Act. No proposal shall be considered | ||||||
26 | that does not include an entity's plan to comply with the |
| |||||||
| |||||||
1 | requirements regarding established in the minority and women | ||||||
2 | business enterprises and economically disadvantaged firms | ||||||
3 | established by the corporate authorities of the transportation | ||||||
4 | agency and with Section 2-105 of the Illinois Human Rights Act. | ||||||
5 | The transportation agency may include any additional relevant | ||||||
6 | criteria in the request for qualifications phase that it deems | ||||||
7 | necessary for a proper qualification review. | ||||||
8 | Upon completion of the qualifications evaluation, the | ||||||
9 | transportation agency shall create a shortlist of the most | ||||||
10 | highly qualified private entities. | ||||||
11 | The transportation agency shall notify the entities | ||||||
12 | selected for the shortlist in writing. This notification shall | ||||||
13 | commence the period for the preparation of the request for | ||||||
14 | proposals phase technical and cost evaluations. The | ||||||
15 | transportation agency must allow sufficient time for the | ||||||
16 | shortlist entities to prepare their proposals considering the | ||||||
17 | scope and detail requested by the transportation agency. | ||||||
18 | (3) The transportation agency shall include in the request | ||||||
19 | for proposals the evaluating factors to be used in the | ||||||
20 | technical and cost submission components. Each request for | ||||||
21 | proposals shall establish, for both the technical and cost | ||||||
22 | submission components, the relative importance assigned to | ||||||
23 | each evaluation factor and subfactor , including any weighting | ||||||
24 | of criteria to be employed by the transportation agency. The | ||||||
25 | transportation agency must maintain a record of the evaluation | ||||||
26 | scoring to be disclosed in event of a protest regarding the |
| |||||||
| |||||||
1 | solicitation. | ||||||
2 | The transportation agency shall include the following | ||||||
3 | criteria in every request for proposals phase technical | ||||||
4 | evaluation of private entities: (i) compliance with objectives | ||||||
5 | of the project; (ii) compliance of proposed services to the | ||||||
6 | request for proposal requirements; (iii) compliance with the | ||||||
7 | request for proposal requirements quality of products or | ||||||
8 | materials proposed; (iv) quality of design parameters; and (v) | ||||||
9 | design concepts ; (vi) innovation in meeting the scope and | ||||||
10 | performance criteria; and (vii) constructability of the | ||||||
11 | proposed project . The transportation agency may include any | ||||||
12 | additional relevant technical evaluation factors it deems | ||||||
13 | necessary for proper selection. | ||||||
14 | The transportation agency shall include the following | ||||||
15 | criteria in every request for proposals phase cost evaluation: | ||||||
16 | the total project cost and the time of completion. The | ||||||
17 | transportation agency may include any additional relevant | ||||||
18 | technical evaluation factors it deems necessary for proper | ||||||
19 | selection. The guaranteed maximum project cost criteria | ||||||
20 | weighing factor shall not exceed 30%. | ||||||
21 | The transportation agency shall directly employ or retain a | ||||||
22 | licensed design professional to evaluate the technical and cost | ||||||
23 | submissions to determine if the technical submissions are in | ||||||
24 | accordance with generally accepted industry standards. | ||||||
25 | (e) Statements of qualifications and proposals must be | ||||||
26 | properly identified and sealed. Statements of qualifications |
| |||||||
| |||||||
1 | and proposals may not be reviewed until after the deadline for | ||||||
2 | submission has passed as set forth in the request for | ||||||
3 | qualifications or the request for proposals. All private | ||||||
4 | entities submitting statements of qualifications or proposals | ||||||
5 | shall be disclosed after the deadline for submission, and all | ||||||
6 | private entities who are selected for request for proposals | ||||||
7 | phase evaluation shall also be disclosed at the time of that | ||||||
8 | determination. | ||||||
9 | Design-build Phase II design-build proposals shall include | ||||||
10 | a bid bond in the form and security as designated in the | ||||||
11 | request for proposals. Proposals shall also contain a separate | ||||||
12 | sealed envelope with the cost information within the overall | ||||||
13 | proposal submission. Proposals shall include a list of all | ||||||
14 | design professionals and other entities to which any work | ||||||
15 | identified in Section 30-30 of the Illinois Procurement Code as | ||||||
16 | a subdivision of construction work may be subcontracted during | ||||||
17 | the performance of the contract to the extent known at the time | ||||||
18 | of proposal. If the information is not known at the time of | ||||||
19 | proposal, then the design-build agreement shall require the | ||||||
20 | identification prior to a previously unlisted subcontractor | ||||||
21 | commencing work on the transportation project . | ||||||
22 | Statements of qualifications and proposals must meet all | ||||||
23 | material requirements of the request for qualifications or | ||||||
24 | request for proposals, or else they may be rejected as | ||||||
25 | non-responsive. The transportation agency shall have the right | ||||||
26 | to reject any and all statements of qualifications and |
| |||||||
| |||||||
1 | proposals. | ||||||
2 | The private entity's proprietary intellectual property | ||||||
3 | contained in the drawings and specifications of any | ||||||
4 | unsuccessful statement of qualifications or proposal shall | ||||||
5 | remain the property of the private entity. | ||||||
6 | The transportation agency shall review the statements of | ||||||
7 | qualifications and the proposals for compliance with the | ||||||
8 | performance criteria and evaluation factors. | ||||||
9 | Statements of qualifications and proposals may be | ||||||
10 | withdrawn prior to the due date and time for submissions for | ||||||
11 | any cause. After evaluation begins by the transportation | ||||||
12 | agency, clear and convincing evidence of error is required for | ||||||
13 | withdrawal.
| ||||||
14 | (Source: P.A. 97-502, eff. 8-23-11.) | ||||||
15 | (630 ILCS 5/35)
| ||||||
16 | Sec. 35. Public-private agreements. | ||||||
17 | (a) Unless undertaking actions otherwise permitted in an | ||||||
18 | interim agreement entered into under Section 30 of this Act, | ||||||
19 | before developing, financing, or operating the transportation | ||||||
20 | project, the approved proposer shall enter into a | ||||||
21 | public-private agreement with the transportation agency. | ||||||
22 | Subject to the requirements of this Act, a public-private | ||||||
23 | agreement may provide that the approved proposer, acting on | ||||||
24 | behalf of the transportation agency, is partially or entirely | ||||||
25 | responsible for any combination of developing, financing, or |
| |||||||
| |||||||
1 | operating the transportation project under terms set forth in | ||||||
2 | the public-private agreement. | ||||||
3 | (b) The public-private agreement may, as determined | ||||||
4 | appropriate by the transportation agency for the particular | ||||||
5 | transportation project, provide for some or all of the | ||||||
6 | following: | ||||||
7 | (1) Development Construction , financing, and operation | ||||||
8 | of the transportation project under terms set forth in the | ||||||
9 | public-private agreement, in any form as deemed | ||||||
10 | appropriate by the transportation agency, including, but | ||||||
11 | not limited to, a long-term concession and lease, a | ||||||
12 | design-bid-build agreement, a design-build agreement, a | ||||||
13 | design-build-maintain agreement, a design-build-finance | ||||||
14 | agreement, a design-build-operate-maintain agreement and a | ||||||
15 | design-build-finance-operate-maintain agreement. | ||||||
16 | (2) Delivery of performance and payment bonds or other | ||||||
17 | performance security determined suitable by the | ||||||
18 | transportation agency, including letters of credit, United | ||||||
19 | States bonds and notes, parent guaranties, and cash | ||||||
20 | collateral, in connection with the development, financing, | ||||||
21 | or operation of the transportation project, in the forms | ||||||
22 | and amounts set forth in the public-private agreement or | ||||||
23 | otherwise determined as satisfactory by the transportation | ||||||
24 | agency to protect the transportation agency and payment | ||||||
25 | bond beneficiaries who have a direct contractual | ||||||
26 | relationship with the contractor or a subcontractor of the |
| |||||||
| |||||||
1 | contractor to supply labor or material. The payment or | ||||||
2 | performance bond or alternative form of performance | ||||||
3 | security is not required for the portion of a | ||||||
4 | public-private agreement that includes only design, | ||||||
5 | planning, or financing services, the performance of | ||||||
6 | preliminary studies, or the acquisition of real property. | ||||||
7 | (3) Review of plans for any development or operation, | ||||||
8 | or both, of the transportation project by the | ||||||
9 | transportation agency. | ||||||
10 | (4) Inspection of any construction of or improvements | ||||||
11 | to the transportation project by the transportation agency | ||||||
12 | or another entity designated by the transportation agency | ||||||
13 | or under the public-private agreement to ensure that the | ||||||
14 | construction or improvements conform to the standards set | ||||||
15 | forth in the public-private agreement or are otherwise | ||||||
16 | acceptable to the transportation agency. | ||||||
17 | (5) Maintenance of: | ||||||
18 | (A) one or more policies of public liability | ||||||
19 | insurance (copies of which shall be filed with the | ||||||
20 | transportation agency accompanied by proofs of | ||||||
21 | coverage); or | ||||||
22 | (B) self-insurance; | ||||||
23 | each in form and amount as set forth in the public-private | ||||||
24 | agreement or otherwise satisfactory to the transportation | ||||||
25 | agency as reasonably sufficient to insure coverage of tort | ||||||
26 | liability to the public and employees and to enable the |
| |||||||
| |||||||
1 | continued operation of the transportation project. | ||||||
2 | (6) Where operations are included within the | ||||||
3 | contractor's obligations under the public-private | ||||||
4 | agreement, monitoring of the maintenance practices of the | ||||||
5 | contractor by the transportation agency or another entity | ||||||
6 | designated by the transportation agency or under the | ||||||
7 | public-private agreement and the taking of the actions the | ||||||
8 | transportation agency finds appropriate to ensure that the | ||||||
9 | transportation project is properly maintained. | ||||||
10 | (7) Reimbursement to be paid to the transportation | ||||||
11 | agency as set forth in the public-private agreement for | ||||||
12 | services provided by the transportation agency. | ||||||
13 | (8) Filing of appropriate financial statements and | ||||||
14 | reports as set forth in the public-private agreement or as | ||||||
15 | otherwise in a form acceptable to the transportation agency | ||||||
16 | on a periodic basis. | ||||||
17 | (9) Compensation or payments to the contractor. | ||||||
18 | Compensation or payments may include any or a combination | ||||||
19 | of the following: | ||||||
20 | (A) a base fee and additional fee for project | ||||||
21 | savings as the design-builder of a construction | ||||||
22 | project; | ||||||
23 | (B) a development fee, payable on a lump-sum basis, | ||||||
24 | progress payment basis, time and materials basis, or | ||||||
25 | another basis deemed appropriate by the transportation | ||||||
26 | agency; |
| |||||||
| |||||||
1 | (C) an operations fee, payable on a lump-sum basis, | ||||||
2 | time and material basis, periodic basis, or another | ||||||
3 | basis deemed appropriate by the transportation agency; | ||||||
4 | (D) some or all of the revenues, if any, arising | ||||||
5 | out of operation of the transportation project; | ||||||
6 | (E) a maximum rate of return on investment or | ||||||
7 | return on equity or a combination of the two; | ||||||
8 | (F) in-kind services, materials, property, | ||||||
9 | equipment, or other items; | ||||||
10 | (G) compensation in the event of any termination; | ||||||
11 | (H) availability payments or similar arrangements | ||||||
12 | whereby payments are made to the contractor pursuant to | ||||||
13 | the terms set forth in the public-private agreement or | ||||||
14 | related agreements; or | ||||||
15 | (I) other compensation set forth in the | ||||||
16 | public-private agreement or otherwise deemed | ||||||
17 | appropriate by the transportation agency. | ||||||
18 | (10) Compensation or payments to the transportation | ||||||
19 | agency, if any. Compensation or payments may include any or | ||||||
20 | a combination of the following: | ||||||
21 | (A) a concession or lease payment or other fee, | ||||||
22 | which may be payable upfront or on a periodic basis or | ||||||
23 | on another basis deemed appropriate by the | ||||||
24 | transportation agency; | ||||||
25 | (B) sharing of revenues, if any, from the operation | ||||||
26 | of the transportation project; |
| |||||||
| |||||||
1 | (C) sharing of project savings from the | ||||||
2 | construction of the transportation project; | ||||||
3 | (D) payment for any services, materials, | ||||||
4 | equipment, personnel, or other items provided by the | ||||||
5 | transportation agency to the contractor under the | ||||||
6 | public-private agreement or in connection with the | ||||||
7 | transportation project; or | ||||||
8 | (E) other compensation set forth in the | ||||||
9 | public-private agreement or otherwise deemed | ||||||
10 | appropriate by the transportation agency. | ||||||
11 | (11) The date and terms of termination of the | ||||||
12 | contractor's authority and duties under the public-private | ||||||
13 | agreement and the circumstances under which the | ||||||
14 | contractor's authority and duties may be terminated prior | ||||||
15 | to that date. | ||||||
16 | (12) Reversion of the transportation project to the | ||||||
17 | transportation agency at the termination or expiration of | ||||||
18 | the public-private agreement. | ||||||
19 | (13) Rights and remedies of the transportation agency | ||||||
20 | in the event that the contractor defaults or otherwise | ||||||
21 | fails to comply with the terms of the public-private | ||||||
22 | agreement. | ||||||
23 | (14) Procedures for the selection of professional | ||||||
24 | design firms and subcontractors, which shall include | ||||||
25 | procedures consistent with the Architectural, Engineering, | ||||||
26 | and Land Surveying Qualifications Based Selection Act for |
| |||||||
| |||||||
1 | the selection of professional design firms and may include, | ||||||
2 | in the discretion of the transportation agency, procedures | ||||||
3 | consistent with the low bid procurement procedures | ||||||
4 | outlined in the Illinois Procurement Code for the selection | ||||||
5 | of construction companies. | ||||||
6 | (15) Other terms, conditions, and provisions that the | ||||||
7 | transportation agency believes are in the public interest. | ||||||
8 | (c) The transportation agency may fix and revise the | ||||||
9 | amounts of user fees that a contractor may charge and collect | ||||||
10 | for the use of any part of a transportation project in | ||||||
11 | accordance with the public-private agreement. In fixing the | ||||||
12 | amounts, the transportation agency may establish maximum | ||||||
13 | amounts for the user fees and may provide that the maximums and | ||||||
14 | any increases or decreases of those maximums shall be based | ||||||
15 | upon the indices, methodologies, or other factors the | ||||||
16 | transportation agency considers appropriate. | ||||||
17 | (d) A public-private agreement may: | ||||||
18 | (1) authorize the imposition of tolls in any manner | ||||||
19 | determined appropriate by the transportation agency for | ||||||
20 | the transportation project; | ||||||
21 | (2) authorize the contractor to adjust the user fees | ||||||
22 | for the use of the transportation project, so long as the | ||||||
23 | amounts charged and collected by the contractor do not | ||||||
24 | exceed the maximum amounts established by the | ||||||
25 | transportation agency under the public-private agreement | ||||||
26 | this Act ; |
| |||||||
| |||||||
1 | (3) provide that any adjustment by the contractor | ||||||
2 | permitted under paragraph (2) of this subsection (d) may be | ||||||
3 | based on the indices, methodologies, or other factors | ||||||
4 | described in the public-private agreement or approved by | ||||||
5 | the transportation agency; | ||||||
6 | (4) authorize the contractor to charge and collect user | ||||||
7 | fees through methods, including, but not limited to, | ||||||
8 | automatic vehicle identification systems, electronic toll | ||||||
9 | collection systems, and, to the extent permitted by law, | ||||||
10 | global positioning system-based, photo-based, or | ||||||
11 | video-based toll collection enforcement, provided that to | ||||||
12 | the maximum extent feasible the contractor will (i) utilize | ||||||
13 | open road tolling methods that allow payment of tolls at | ||||||
14 | highway speeds and (ii) comply with United States | ||||||
15 | Department of Transportation requirements and best | ||||||
16 | practices with respect to tolling methods; and | ||||||
17 | (5) authorize the collection of user fees by a third | ||||||
18 | party. | ||||||
19 | (e) In the public-private agreement, the transportation | ||||||
20 | agency may agree to make grants or loans for the development or | ||||||
21 | operation, or both, of the transportation project from time to | ||||||
22 | time from amounts received from the federal government or any | ||||||
23 | agency or instrumentality of the federal government or from any | ||||||
24 | State or local agency. | ||||||
25 | (f) Upon the termination or expiration of the | ||||||
26 | public-private agreement, including a termination for default, |
| |||||||
| |||||||
1 | the transportation agency shall have the right to take over the | ||||||
2 | transportation project and to succeed to all of the right, | ||||||
3 | title, and interest in the transportation project , subject to | ||||||
4 | any liens on revenues previously granted by the contractor to | ||||||
5 | any person providing financing for the transportation project . | ||||||
6 | Upon termination or expiration of the public-private agreement | ||||||
7 | relating to a transportation project undertaken by the | ||||||
8 | Department, all real property acquired as a part of the | ||||||
9 | transportation project shall be held in the name of the State | ||||||
10 | of Illinois. Upon termination or expiration of the | ||||||
11 | public-private agreement relating to a transportation project | ||||||
12 | undertaken by the Authority, all real property acquired as a | ||||||
13 | part of the transportation project shall be held in the name of | ||||||
14 | the Authority. | ||||||
15 | (g) If a transportation agency elects to take over a | ||||||
16 | transportation project as provided in subsection (f) of this | ||||||
17 | Section, the transportation agency may do the following: | ||||||
18 | (1) develop, finance, or operate the project, | ||||||
19 | including through a public-private agreement entered into | ||||||
20 | in accordance with this Act; or | ||||||
21 | (2) impose, collect, retain, and use user fees, if any, | ||||||
22 | for the project. | ||||||
23 | (h) If a transportation agency elects to take over a | ||||||
24 | transportation project as provided in subsection (f) of this | ||||||
25 | Section, the transportation agency may use the revenues, if | ||||||
26 | any, for any lawful purpose, including to: |
| |||||||
| |||||||
1 | (1) make payments to individuals or entities in | ||||||
2 | connection with any financing of the transportation | ||||||
3 | project, including through a public-private agreement | ||||||
4 | entered into in accordance with this Act; | ||||||
5 | (2) permit a contractor to receive some or all of the | ||||||
6 | revenues under a public-private agreement entered into | ||||||
7 | under this Act; | ||||||
8 | (3) pay development costs of the project; | ||||||
9 | (4) pay current operation costs of the project or | ||||||
10 | facilities; | ||||||
11 | (5) pay the contractor for any compensation or payment | ||||||
12 | owing upon termination; and | ||||||
13 | (6) pay for the development, financing, or operation of | ||||||
14 | any other project or projects the transportation agency | ||||||
15 | deems appropriate. | ||||||
16 | (i) The full faith and credit of the State or any political | ||||||
17 | subdivision of the State or the transportation agency is not | ||||||
18 | pledged to secure any financing of the contractor by the | ||||||
19 | election to take over the transportation project. Assumption of | ||||||
20 | development or operation, or both, of the transportation | ||||||
21 | project does not obligate the State or any political | ||||||
22 | subdivision of the State or the transportation agency to pay | ||||||
23 | any obligation of the contractor. | ||||||
24 | (j) The transportation agency may enter into a | ||||||
25 | public-private agreement with multiple approved proposers if | ||||||
26 | the transportation agency determines in writing that it is in |
| |||||||
| |||||||
1 | the public interest to do so. | ||||||
2 | (k) A public-private agreement shall not include any | ||||||
3 | provision under which the transportation agency agrees to | ||||||
4 | restrict or to provide compensation to the private entity for | ||||||
5 | the construction or operation of a competing transportation | ||||||
6 | facility during the term of the public-private agreement. | ||||||
7 | (l) With respect to a public-private agreement entered into | ||||||
8 | by the Department, the Department shall certify in its State | ||||||
9 | budget request to the Governor each year the amount required by | ||||||
10 | the Department during the next State fiscal year to enable the | ||||||
11 | Department to make any payment obligated to be made by the | ||||||
12 | Department pursuant to that public-private agreement, and the | ||||||
13 | Governor shall include that amount in the State budget | ||||||
14 | submitted to the General Assembly.
| ||||||
15 | (Source: P.A. 97-502, eff. 8-23-11.) | ||||||
16 | (630 ILCS 5/40)
| ||||||
17 | Sec. 40. Development and operations standards for | ||||||
18 | transportation projects. | ||||||
19 | (a) The plans and specifications, if any, for each project | ||||||
20 | developed under this Act must comply with: | ||||||
21 | (1) the transportation agency's standards for other | ||||||
22 | projects of a similar nature or as otherwise provided in | ||||||
23 | the public-private agreement; | ||||||
24 | (2) the Professional Engineering Practice Act of 1989, | ||||||
25 | the Structural Engineering Practice Act of 1989, the |
| |||||||
| |||||||
1 | Illinois Architecture Practice Act of 1989, the | ||||||
2 | requirements of Section 30-22 of the Illinois Procurement | ||||||
3 | Code as they apply to responsible bidders, and the Illinois | ||||||
4 | Professional Land Surveyor Act of 1989; and | ||||||
5 | (3) any other applicable State or federal standards. | ||||||
6 | (b) Each highway project constructed or operated under this | ||||||
7 | Act is considered to be part of: | ||||||
8 | (1) the State highway system for purposes of | ||||||
9 | identification, maintenance standards, and enforcement of | ||||||
10 | traffic laws if the highway project is under the | ||||||
11 | jurisdiction of the Department; or | ||||||
12 | (2) the toll highway system for purposes of | ||||||
13 | identification, maintenance standards, and enforcement of | ||||||
14 | traffic laws if the highway project is under the | ||||||
15 | jurisdiction of the Authority. | ||||||
16 | (c) Any unit of local government or State agency may enter | ||||||
17 | into agreements with the contractor for maintenance or other | ||||||
18 | services under this Act. | ||||||
19 | (d) Any electronic toll collection system used on a toll | ||||||
20 | highway, bridge, or tunnel as part of a transportation project | ||||||
21 | must be compatible with the electronic toll collection system | ||||||
22 | used by the Authority. The Authority is authorized to | ||||||
23 | construct, operate, and maintain any electronic toll | ||||||
24 | collection system used on a toll highway, bridge, or tunnel as | ||||||
25 | part of a transportation project pursuant to an agreement with | ||||||
26 | the transportation agency or the contractor responsible for the |
| |||||||
| |||||||
1 | transportation project. All private entities and public | ||||||
2 | agencies shall have an equal opportunity to contract with the | ||||||
3 | Authority to provide construction, operation, and maintenance | ||||||
4 | services. In addition, during the procurement of a | ||||||
5 | public-private agreement, these construction, operation, and | ||||||
6 | maintenance services shall be available under identical terms | ||||||
7 | to each private entity participating in the procurement. To the | ||||||
8 | extent that a public-private agreement or an agreement with a | ||||||
9 | public agency under subsection (c) of Section 20 of this Act | ||||||
10 | authorizes tolling, the transportation agencies and any | ||||||
11 | contractor under a public-private partnership or a public | ||||||
12 | agency under an agreement pursuant to subsection (c) of Section | ||||||
13 | 20 of this Act shall comply with subsection (a-5) of Section 10 | ||||||
14 | of the Toll Highway Act as it relates to toll enforcement.
| ||||||
15 | (Source: P.A. 97-502, eff. 8-23-11.) | ||||||
16 | (630 ILCS 5/45)
| ||||||
17 | Sec. 45. Financial arrangements. | ||||||
18 | (a) The transportation agency may do any combination of | ||||||
19 | applying for, executing, or endorsing applications submitted | ||||||
20 | by private entities to obtain federal, State, or local credit | ||||||
21 | assistance for transportation projects developed, financed, or | ||||||
22 | operated under this Act, including loans, lines of credit, and | ||||||
23 | guarantees. | ||||||
24 | (b) The transportation agency may take any action to obtain | ||||||
25 | federal, State, or local assistance for a transportation |
| |||||||
| |||||||
1 | project that serves the public purpose of this Act and may | ||||||
2 | enter into any contracts required to receive the federal | ||||||
3 | assistance. The transportation agency may determine that it | ||||||
4 | serves the public purpose of this Act for all or any portion of | ||||||
5 | the costs of a transportation project to be paid, directly or | ||||||
6 | indirectly, from the proceeds of a grant or loan, line of | ||||||
7 | credit, or loan guarantee made by a local, State, or federal | ||||||
8 | government or any agency or instrumentality of a local, State, | ||||||
9 | or federal government. Such assistance may include, but not be | ||||||
10 | limited to, federal credit assistance pursuant to the | ||||||
11 | Transportation Infrastructure Finance and Innovation Act | ||||||
12 | (TIFIA). | ||||||
13 | (c) The transportation agency may agree to make grants or | ||||||
14 | loans for the development, financing, or operation of a | ||||||
15 | transportation project from time to time, from amounts received | ||||||
16 | from the federal, State, or local government or any agency or | ||||||
17 | instrumentality of the federal, State, or local government. | ||||||
18 | (d) Any financing of a transportation project may be in the | ||||||
19 | amounts and upon the terms and conditions that are determined | ||||||
20 | by the parties to the public-private agreement. | ||||||
21 | (e) For the purpose of financing a transportation project, | ||||||
22 | the contractor and the transportation agency may do the | ||||||
23 | following: | ||||||
24 | (1) propose to use any and all revenues that may be | ||||||
25 | available to them; | ||||||
26 | (2) enter into grant agreements; |
| |||||||
| |||||||
1 | (3) access any other funds available to the | ||||||
2 | transportation agency; and | ||||||
3 | (4) accept grants from the transportation agency or | ||||||
4 | other public or private agency or entity. | ||||||
5 | (f) For the purpose of financing a transportation project, | ||||||
6 | public funds may be used and mixed and aggregated with funds | ||||||
7 | provided by or on behalf of the contractor or other private | ||||||
8 | entities. | ||||||
9 | (g) For the purpose of financing a transportation project, | ||||||
10 | each transportation agency is authorized to do any combination | ||||||
11 | of applying for, executing, or endorsing applications for an | ||||||
12 | allocation of tax-exempt bond financing authorization provided | ||||||
13 | by Section 142(m) of the United States Internal Revenue Code, | ||||||
14 | as well as financing available under any other federal law or | ||||||
15 | program. | ||||||
16 | (h) Any bonds, debt, or other securities or other financing | ||||||
17 | issued by or on behalf of a contractor for the purposes of a | ||||||
18 | project undertaken under this Act shall not be deemed to | ||||||
19 | constitute a debt of the State or any political subdivision of | ||||||
20 | the State or a pledge of the faith and credit of the State or | ||||||
21 | any political subdivision of the State.
| ||||||
22 | (Source: P.A. 97-502, eff. 8-23-11.) | ||||||
23 | (630 ILCS 5/90 new) | ||||||
24 | Sec. 90. Public-Private Partnerships for Transportation | ||||||
25 | Fund. The Public-Private Partnerships for Transportation Fund |
| |||||||
| |||||||
1 | is created as a special fund in the State treasury. Moneys in | ||||||
2 | the Public-Private Partnerships for Transportation Fund shall | ||||||
3 | be appropriated to the Department of Transportation to promote | ||||||
4 | the development, financing, and operation of transportation | ||||||
5 | facilities under this Act. Investment income which is | ||||||
6 | attributable to the investment of moneys in the Public-Private | ||||||
7 | Partnerships for Transportation Fund shall be retained in the | ||||||
8 | Public-Private Partnerships for Transportation Fund.
| ||||||
9 | Section 99. Effective date. This Act takes effect upon | ||||||
10 | becoming law.
|