Full Text of SB0766 94th General Assembly
SB0766eng 94TH GENERAL ASSEMBLY
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| AN ACT concerning procurement.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 1. Short title. This Act may be cited as the | 5 |
| Design-Build
Procurement Act . | 6 |
| Section 5. Legislative policy. It is the intent of the | 7 |
| General Assembly
that
the Capital Development Board be allowed | 8 |
| to use the design-build delivery method
for public
projects if | 9 |
| it is shown to be in the State's best interest for that | 10 |
| particular
project. It shall be the policy of the Capital | 11 |
| Development Board in the
procurement of
design-build services | 12 |
| to publicly announce all requirements for design-build
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| services and to procure these services on the basis of | 14 |
| demonstrated competence
and qualifications and with due regard | 15 |
| for the principles of competitive
selection.
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| The Capital Development Board shall, prior to issuing | 17 |
| requests for proposals,
promulgate
and publish procedures for | 18 |
| the solicitation and award of contracts pursuant to
this Act.
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| The Capital Development Board shall, for each public | 20 |
| project or projects
permitted under
this Act, make a written | 21 |
| determination, including a description as to the
particular | 22 |
| advantages of the design-build procurement method, that it is | 23 |
| in the
best interests of this State to enter into a | 24 |
| design-build contract for the
project or projects. In making | 25 |
| that determination, the following factors shall
be considered:
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| (1) The probability that the design-build procurement | 27 |
| method will be in
the best interests of the State by | 28 |
| providing a material savings of time or
cost over the | 29 |
| design-bid-build or other delivery system.
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| (2) The type and size of the project and its | 31 |
| suitability to the
design-build procurement method.
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| (3) The ability of the State construction agency to |
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| define and provide
comprehensive
scope and performance | 2 |
| criteria for the project.
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| No State construction agency may use a design-build | 4 |
| procurement method unless the agency determines in writing that | 5 |
| the project will comply with the disadvantaged business and | 6 |
| equal employment practices of the State as established in the | 7 |
| Business Enterprise for Minorities, Females, and Persons with | 8 |
| Disabilities Act and Section 2-105 of the Illinois Human Rights | 9 |
| Act.
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| The Capital Development Board shall within 15 days after | 11 |
| the initial
determination provide an advisory copy to the | 12 |
| Procurement Policy Board and
maintain the full record of | 13 |
| determination for 5 years.
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| Section 10. Definitions. As used in this Act:
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| "State construction agency" means the Capital Development | 16 |
| Board.
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| "Delivery system" means the design and construction | 18 |
| approach used to develop
and construct a project.
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| "Design-bid-build" means the traditional delivery system | 20 |
| used on public
projects in this State that incorporates the | 21 |
| Architectural, Engineering, and
Land Surveying Qualification | 22 |
| Based Selection Act (30 ILCS 535/) and the
principles of | 23 |
| competitive selection in the Illinois Procurement Code (30 ILCS
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| 500/).
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| "Design-build" means a delivery system that provides | 26 |
| responsibility within a
single contract for the furnishing of | 27 |
| architecture, engineering, land surveying
and related services | 28 |
| as required, and the labor, materials, equipment, and
other | 29 |
| construction services for the project.
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| "Design-build contract" means a contract for a public | 31 |
| project under this Act
between the State construction agency | 32 |
| and a design-build entity to furnish
architecture,
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| engineering, land surveying, and related services as required, | 34 |
| and to furnish
the labor, materials, equipment, and other | 35 |
| construction services for the
project. The design-build |
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| contract may be conditioned upon subsequent
refinements in | 2 |
| scope and price and may allow the State construction agency to
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| make
modifications in the project scope without invalidating | 4 |
| the design-build
contract.
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| "Design-build entity" means any individual, sole | 6 |
| proprietorship, firm,
partnership, joint venture, corporation, | 7 |
| professional corporation, or other
entity that proposes to | 8 |
| design and construct any public project under this Act.
A | 9 |
| design-build entity and associated design-build professionals | 10 |
| shall conduct themselves in accordance with the laws of this | 11 |
| State and the related provisions of the Illinois Administrative | 12 |
| Code, as referenced by the licensed design professionals Acts | 13 |
| of this State.
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| "Design professional" means any individual, sole | 15 |
| proprietorship, firm,
partnership, joint venture, corporation, | 16 |
| professional corporation, or other
entity that offers services | 17 |
| under the Illinois Architecture Practice Act of
1989 (225 ILCS | 18 |
| 305/), the Professional Engineering Practice Act of 1989 (225
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| ILCS 325/),
the Structural Engineering Licensing Act of 1989 | 20 |
| (225 ILCS 340/), or the
Illinois Professional
Land Surveyor Act | 21 |
| of 1989 (225 ILCS 330/).
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| "Evaluation criteria" means the requirements for the | 23 |
| separate phases of the
selection process as defined in this Act | 24 |
| and may include the specialized
experience, technical | 25 |
| qualifications and competence, capacity to perform, past
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| performance, experience with similar projects, assignment of | 27 |
| personnel to the
project, and other appropriate factors. Price | 28 |
| may not be used as a factor in
the evaluation of Phase I | 29 |
| proposals.
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| "Proposal" means the offer to enter into a design-build | 31 |
| contract as submitted
by a design-build entity in accordance | 32 |
| with this Act.
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| "Request for proposal" means the document used by the State | 34 |
| construction agency
to solicit
proposals for a design-build | 35 |
| contract.
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| "Scope and performance criteria" means the requirements |
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| for the public
project, including but not limited to, the | 2 |
| intended usage, capacity, size,
scope, quality and performance | 3 |
| standards, life-cycle costs, and other
programmatic criteria | 4 |
| that are expressed in performance-oriented and
quantifiable | 5 |
| specifications and drawings that can be reasonably inferred and
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| are suited to allow a design-build entity to develop a | 7 |
| proposal.
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| Section 15. Solicitation of proposals.
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| (a) When the State construction agency elects to use the | 10 |
| design-build delivery
method, it must
issue a notice of intent | 11 |
| to receive requests for proposals for the project at
least 14 | 12 |
| days before issuing the request for the proposal. The State
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| construction agency
must publish the advance notice in the | 14 |
| official procurement bulletin of the
State or the professional | 15 |
| services bulletin of the State construction agency,
if any. The
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| agency is encouraged to use publication of the notice in | 17 |
| related construction
industry service publications. A brief | 18 |
| description of the proposed procurement
must be included in the | 19 |
| notice. The State construction agency must provide a
copy of | 20 |
| the
request for proposal to any party requesting a copy.
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| (b) The request for proposal shall be prepared for each | 22 |
| project and must
contain, without limitation, the following | 23 |
| information:
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| (1) The name of the State construction agency.
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| (2) A preliminary schedule for the completion of the | 26 |
| contract.
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| (3) The proposed budget for the project, the source of | 28 |
| funds, and the
currently available funds at the time the | 29 |
| request for proposal is submitted.
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| (4) Prequalification criteria for design-build | 31 |
| entities wishing to submit
proposals.
The State | 32 |
| construction agency shall include, at a minimum, its normal
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| prequalification, licensing, registration, and other | 34 |
| requirements, but nothing
contained herein precludes the | 35 |
| use of additional prequalification criteria
by the State |
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| construction agency.
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| (5) Material requirements of the contract, including | 3 |
| but not limited to,
the proposed terms and conditions, | 4 |
| required performance and payment bonds,
insurance, and the | 5 |
| entity's plan to comply with the utilization goals for | 6 |
| business enterprises established in the Business | 7 |
| Enterprise for Minorities, Females, and Persons with | 8 |
| Disabilities Act, and with Section 2-105 of the Illinois | 9 |
| Human Rights Act.
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| (6) The performance criteria.
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| (7) The evaluation criteria for each phase of the | 12 |
| solicitation.
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| (8) The number of entities that will be considered for | 14 |
| the technical and
cost
evaluation phase.
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| (c) The State construction agency may include any other | 16 |
| relevant information
that it
chooses to supply. The | 17 |
| design-build entity shall be entitled to rely upon the
accuracy | 18 |
| of this documentation in the development of its proposal.
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| (d) The date that proposals are due must be at least 21 | 20 |
| calendar days after
the date of the issuance of the request for | 21 |
| proposal. In the event the cost of
the project
is estimated to | 22 |
| exceed $10 million, then the proposal due date must be at least
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| 28 calendar days after the date of the issuance of the request | 24 |
| for proposal.
The State construction agency shall include in | 25 |
| the request for proposal a
minimum of 30 days
to develop the | 26 |
| Phase II submissions after the selection of entities
from the | 27 |
| Phase I evaluation is completed.
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| Section 20. Development of scope and performance criteria.
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| (a) The State construction agency shall develop, with the | 30 |
| assistance of a
licensed design professional, a request
for | 31 |
| proposal, which shall include scope and performance criteria.
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| The scope and performance criteria must be in sufficient detail | 33 |
| and contain
adequate information to reasonably apprise the | 34 |
| qualified design-build entities
of the State construction | 35 |
| agency's overall programmatic needs and goals,
including |
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| criteria and preliminary design plans,
general budget | 2 |
| parameters, schedule, and delivery requirements.
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| (b) Each request for proposal shall also include a | 4 |
| description of the level
of design to be provided in the | 5 |
| proposals. This description must include the
scope and type of | 6 |
| renderings, drawings, and specifications that, at a minimum,
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| will be required by the State construction agency to be | 8 |
| produced by the
design-build entities.
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| (c) The scope and performance criteria shall be prepared by | 10 |
| a design
professional who is an employee of the State | 11 |
| construction agency, or the State
construction
agency may
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| contract with an independent design professional selected | 13 |
| under the
Architectural, Engineering and Land Surveying | 14 |
| Qualification Based Selection Act
(30 ILCS 535/) to provide | 15 |
| these services.
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| (d) The design professional that prepares the scope and | 17 |
| performance criteria
is prohibited from participating in any | 18 |
| design-build entity proposal for the
project.
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| Section 25. Selection Committee.
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| (a) When the State construction agency elects to use the | 21 |
| design-build
delivery method, it
shall establish a committee to | 22 |
| evaluate and select the design-build entity. The
committee, | 23 |
| under the discretion of the State construction agency, shall | 24 |
| consist
of 5 or
7 members and shall include at least one | 25 |
| licensed design professional and 2
members of the public. | 26 |
| Public
members may not be employed or associated with any firm | 27 |
| holding a contract with
the State construction agency. One | 28 |
| public member shall be nominated by associations representing | 29 |
| the general design or construction industry and one member | 30 |
| shall be nominated by associations that represent minority or | 31 |
| female-owned design or construction industry businesses. The | 32 |
| selection committee may be designated for a set term
or
for the | 33 |
| particular project subject to the request for proposal.
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| (b) The members of the selection committee must certify for | 35 |
| each request for
proposal that no conflict of interest exists |
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| between the members and the
design-build entities submitting | 2 |
| proposals. If a conflict exists, the member
must
be replaced | 3 |
| before any review of proposals.
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| Section 30. Procedures for Selection.
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| (a) The State construction agency must use a two-phase | 6 |
| procedure for the
selection of the
successful design-build | 7 |
| entity. Phase I of the procedure will evaluate and
shortlist | 8 |
| the design-build entities based on qualifications, and Phase II
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| will
evaluate the technical and cost proposals.
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| (b) The State construction agency shall include in the | 11 |
| request for proposal
the
evaluating factors to be used in Phase | 12 |
| I. These factors are in addition to any
prequalification | 13 |
| requirements of design-build entities that the agency has set
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| forth. Each request for proposal shall establish the relative | 15 |
| importance
assigned to each evaluation factor and subfactor, | 16 |
| including any weighting of
criteria to be employed by the State | 17 |
| construction agency. The State
construction agency must | 18 |
| maintain a
record of the evaluation scoring to be disclosed in | 19 |
| event of a protest
regarding the solicitation.
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| The State construction agency shall include the following | 21 |
| criteria in every
Phase I
evaluation of design-build entities: | 22 |
| (1) experience of personnel; (2)
successful
experience with | 23 |
| similar project types; (3) financial capability; (4) | 24 |
| timeliness
of past performance; (5) experience with similarly | 25 |
| sized projects; (6)
successful reference checks of the firm; | 26 |
| (7) commitment to assign personnel
for the duration of the | 27 |
| project and qualifications of the entity's consultants; and (8) | 28 |
| ability or past performance in meeting or exhausting good faith | 29 |
| efforts to meet the utilization goals for business enterprises | 30 |
| established in the Business Enterprise for Minorities, | 31 |
| Females, and Persons with Disabilities Act and with Section | 32 |
| 2-105 of the Illinois Human Rights Act.
The State construction | 33 |
| agency may include any additional relevant criteria in
Phase I | 34 |
| that
it deems necessary for a proper qualification review.
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| The State construction agency may not consider any |
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| design-build entity for
evaluation or
award if the entity has | 2 |
| any pecuniary interest in the project or has other
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| relationships or circumstances, including but not limited to, | 4 |
| long-term
leasehold, mutual performance, or development | 5 |
| contracts with the State
construction agency,
that may give the | 6 |
| design-build entity a financial or tangible advantage over
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| other design-build entities in the preparation, evaluation, or | 8 |
| performance of
the
design-build contract or that create the | 9 |
| appearance of impropriety.
No proposal shall be considered that | 10 |
| does not include an entity's plan to comply with the | 11 |
| requirements established in the Business Enterprise for | 12 |
| Minorities, Females, and Persons with Disabilities Act and with | 13 |
| Section 2-105 of the Illinois Human Rights Act.
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| Upon completion of the qualifications evaluation, the | 15 |
| State construction
agency shall
create a shortlist of the most | 16 |
| highly qualified design-build entities. The
State
construction | 17 |
| agency, in its discretion, is not required to shortlist the
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| maximum number of
entities as identified for Phase II | 19 |
| evaluation, provided however, no less than
2
design-build | 20 |
| entities nor more than 6 are selected to submit Phase II
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| proposals.
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| The State construction agency shall notify the entities | 23 |
| selected for the
shortlist in
writing. This notification shall | 24 |
| commence the period for the preparation of the
Phase II | 25 |
| technical and cost evaluations. The State construction agency | 26 |
| must
allow sufficient
time for the shortlist entities to | 27 |
| prepare their Phase II submittals
considering
the scope and | 28 |
| detail requested by the State agency.
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| (c) The State construction agency shall include in the | 30 |
| request for proposal
the
evaluating factors to be used in the | 31 |
| technical and cost submission components
of Phase II. Each | 32 |
| request for proposal shall establish, for both the technical
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| and cost submission components of Phase II, the relative | 34 |
| importance assigned to
each evaluation factor and subfactor, | 35 |
| including any weighting of criteria to be
employed by the State | 36 |
| construction agency. The State construction agency must
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| maintain a record of the
evaluation scoring to be disclosed in | 2 |
| event of a protest regarding the
solicitation.
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| The State construction agency shall include the following | 4 |
| criteria in every
Phase II
technical evaluation of design-build | 5 |
| entities: (1) compliance with objectives
of
the
project; (2) | 6 |
| compliance of proposed services to the request for proposal
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| requirements; (3) quality of products or materials proposed; | 8 |
| (4) quality of
design parameters; (5) design concepts; (6) | 9 |
| innovation in meeting the scope and
performance criteria; and | 10 |
| (7) constructability of the
proposed project. The State | 11 |
| construction agency may include any additional
relevant
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| technical evaluation factors it deems necessary for proper | 13 |
| selection.
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| The State construction agency shall include the following | 15 |
| criteria in every
Phase II cost
evaluation: the total project | 16 |
| cost, the construction costs, and the time of
completion. The | 17 |
| State construction agency may include any additional relevant
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| technical
evaluation factors it deems necessary for proper | 19 |
| selection. The total project cost criteria weighing factor | 20 |
| shall be 25%.
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| The State construction agency shall directly employ or | 22 |
| retain a licensed
design
professional to evaluate the technical | 23 |
| and cost submissions to determine if the
technical submissions | 24 |
| are in accordance with generally
accepted industry standards.
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| Upon completion of the technical submissions and cost | 26 |
| submissions evaluation,
the State construction agency may | 27 |
| award the design-build contract to the
highest
overall ranked | 28 |
| entity.
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| Section 35. Small projects. In any case where the total | 30 |
| overall cost of the
project is estimated to be less than $10 | 31 |
| million, the State construction agency
may combine
the | 32 |
| two-phase procedure for selection described in Section 30 into | 33 |
| one combined
step, provided that all the requirements of | 34 |
| evaluation are performed in
accordance with Section 30.
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| Section 40. Submission of proposals. Proposals must be | 2 |
| properly identified
and sealed. Proposals may not be reviewed | 3 |
| until after the deadline for
submission has passed as set forth | 4 |
| in the request for proposals. All
design-build entities | 5 |
| submitting proposals shall be disclosed after the
deadline
for | 6 |
| submission, and all design-build entities who are selected for | 7 |
| Phase II
evaluation shall also be disclosed at the time of that | 8 |
| determination.
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| Proposals shall include a bid bond in the form and security | 10 |
| as designated in
the request for proposals. Proposals shall | 11 |
| also contain a separate sealed
envelope with the cost | 12 |
| information within the overall proposal submission.
Proposals | 13 |
| shall include a list of all design professionals and other | 14 |
| entities
as defined in Section 30-30 of the Illinois | 15 |
| Procurement Code to which any work may be subcontracted during | 16 |
| the performance of the contract. Any entity that will perform | 17 |
| any of the 5 subdivisions of work defined in Section 30-30 of | 18 |
| the Illinois Procurement Code must meet prequalification | 19 |
| standards of the State construction agency.
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| Proposals must meet all material requirements of the | 21 |
| request for proposal or
they may be rejected as non-responsive. | 22 |
| The State construction agency shall
have the right
to reject | 23 |
| any and all proposals.
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| The drawings and specifications of the proposal shall | 25 |
| remain the property of
the design-build entity.
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| The State construction agency shall review the proposals | 27 |
| for compliance with
the
performance criteria and evaluation | 28 |
| factors.
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| Proposals may be withdrawn prior to evaluation for any | 30 |
| cause. After
evaluation begins by the State construction | 31 |
| agency, clear and convincing
evidence of error
is required for | 32 |
| withdrawal.
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| Section 45. Award. The State construction agency may award | 34 |
| the contract to
the highest
overall ranked entity. Notice of | 35 |
| award shall be made in writing. Unsuccessful
entities shall |
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| also be notified in writing. The State construction agency may
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| not request a
best and final offer after the receipt of | 3 |
| proposals. The State construction
agency may
negotiate with the | 4 |
| selected design-build entity after award but prior to
contract
| 5 |
| execution for the purpose of securing better terms than | 6 |
| originally proposed,
provided that the salient features of the | 7 |
| request for proposal are not
diminished.
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| Section 46. Reports and evaluation. At the end of every 6 | 9 |
| month period following the contract award, and again prior to | 10 |
| final contract payout and closure, a selected design-build | 11 |
| entity shall detail, in a written report submitted to the State | 12 |
| agency, its efforts and success in implementing the entity's | 13 |
| plan to comply with the utilization goals for business | 14 |
| enterprises established in the Business Enterprise for | 15 |
| Minorities, Females, and Persons with Disabilities Act and the | 16 |
| provisions of Section 2-105 of the Illinois Human Rights Act. | 17 |
| If the entity's performance in implementing the plan falls | 18 |
| short of the performance measures and outcomes set forth in the | 19 |
| plans submitted by the entity during the proposal process, the | 20 |
| entity shall, in a detailed written report, inform the General | 21 |
| Assembly and the Governor whether and to what degree each | 22 |
| design-build contract authorized under this Act promoted the | 23 |
| utilization goals for business enterprises established in the | 24 |
| Business Enterprise for Minorities, Females, and Persons with | 25 |
| Disabilities Act and the provisions of Section 2-105 of the | 26 |
| Illinois Human Rights Act. | 27 |
| Section 50. Administrative Procedure Act. The Illinois
| 28 |
| Administrative Procedure Act (5 ILCS 100/) applies to all
| 29 |
| administrative rules and procedures of the State construction | 30 |
| agency under this
Act except that nothing herein shall be | 31 |
| construed to render any prequalification or other | 32 |
| responsibility criteria as a "license" or "licensing" under | 33 |
| that Act.
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| Section 53. Federal requirements. In the procurement of | 2 |
| design-build
contracts, the State construction agency shall | 3 |
| comply with federal law and
regulations and take all necessary | 4 |
| steps to adapt their rules, policies, and
procedures to remain | 5 |
| eligible for federal aid.
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| Section 90. Repealer. This Act is repealed on July 1, 2009. | 7 |
| Section 95. Severability. The provisions of this Act are | 8 |
| severable under
Section 1.31 of the Statute on Statutes.
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| Section 99. Effective date. This Act takes effect upon | 10 |
| becoming law. |
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