Full Text of SB3620 103rd General Assembly
SB3620 103RD GENERAL ASSEMBLY | | | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 SB3620 Introduced 2/9/2024, by Sen. Ram Villivalam SYNOPSIS AS INTRODUCED: | | 630 ILCS 5/10 | | 630 ILCS 5/15 | | 630 ILCS 5/19 | |
| Amends the Public-Private Partnerships for Transportation Act. Deletes the definition of "transportation agency". Modifies the definition of "proposer". Provides that a responsible public entity may not receive unsolicited proposals for a project. Deletes provisions that allowed unsolicited proposals for projects if specified guidelines were met. Effective immediately. |
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| | A BILL FOR |
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| 1 | | AN ACT concerning transportation. | 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly: | 4 | | Section 5. The Public-Private Partnerships for | 5 | | Transportation Act is amended by changing Sections 10, 15, and | 6 | | 19 as follows: | 7 | | (630 ILCS 5/10) | 8 | | Sec. 10. Definitions. As used in this Act: | 9 | | "Approved proposal" means the proposal that is approved by | 10 | | the responsible public entity pursuant to subsection (j) of | 11 | | Section 20 of this Act. | 12 | | "Approved proposer" means the private entity whose | 13 | | proposal is the approved proposal. | 14 | | "Authority" means the Illinois State Toll Highway | 15 | | Authority. | 16 | | "Contractor" means a private entity that has entered into | 17 | | a public-private agreement with the responsible public entity | 18 | | to provide services to or on behalf of the responsible public | 19 | | entity. | 20 | | "Department" means the Illinois Department of | 21 | | Transportation. | 22 | | "Design-build agreement" means the agreement between the | 23 | | selected private entity and the responsible public entity |
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| 1 | | under which the selected private entity agrees to furnish | 2 | | design, construction, and related services for a | 3 | | transportation facility under this Act. | 4 | | "Develop" or "development" means to do one or more of the | 5 | | following: plan, design, develop, lease, acquire, install, | 6 | | construct, reconstruct, rehabilitate, extend, or expand. | 7 | | "Maintain" or "maintenance" includes ordinary maintenance, | 8 | | repair, rehabilitation, capital maintenance, maintenance | 9 | | replacement, and any other categories of maintenance that may | 10 | | be designated by the responsible public entity. | 11 | | "Operate" or "operation" means to do one or more of the | 12 | | following: maintain, improve, equip, modify, or otherwise | 13 | | operate. | 14 | | "Private entity" means any combination of one or more | 15 | | individuals, corporations, general partnerships, limited | 16 | | liability companies, limited partnerships, joint ventures, | 17 | | business trusts, nonprofit entities, or other business | 18 | | entities that are parties to a proposal for a transportation | 19 | | project or an agreement related to a transportation project. A | 20 | | public agency may provide services to a contractor as a | 21 | | subcontractor or subconsultant without affecting the private | 22 | | status of the private entity and the ability to enter into a | 23 | | public-private agreement. A transportation agency is not a | 24 | | private entity. | 25 | | "Proposal" means all materials and documents prepared by | 26 | | or on behalf of a private entity relating to the proposed |
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| 1 | | development, financing, or operation of a transportation | 2 | | facility as a transportation project. | 3 | | "Proposer" means a private entity that has submitted an | 4 | | unsolicited proposal for a public-private agreement to a | 5 | | responsible public entity under this Act or a proposal or | 6 | | statement of qualifications for a public-private agreement in | 7 | | response to a request for proposals or a request for | 8 | | qualifications issued by a responsible public entity under | 9 | | this Act. | 10 | | "Public-private agreement" means the public-private | 11 | | agreement between the contractor and the responsible public | 12 | | entity relating to one or more of the development, financing, | 13 | | or operation of a transportation project that is entered into | 14 | | under this Act. | 15 | | "Request for information" means all materials and | 16 | | documents prepared by or on behalf of the responsible public | 17 | | entity to solicit information from private entities with | 18 | | respect to transportation projects. | 19 | | "Request for proposals" means all materials and documents | 20 | | prepared by or on behalf of the responsible public entity to | 21 | | solicit proposals from private entities to enter into a | 22 | | public-private agreement. | 23 | | "Request for qualifications" means all materials and | 24 | | documents prepared by or on behalf of the responsible public | 25 | | entity to solicit statements of qualification from private | 26 | | entities to enter into a public-private agreement. |
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| 1 | | "Responsible public entity" means the Department of | 2 | | Transportation or , the Illinois State Toll Highway Authority. | 3 | | "Revenues" means all revenues, including any combination | 4 | | of: income; earnings and interest; user fees; lease payments; | 5 | | allocations; federal, State, and local appropriations, grants, | 6 | | loans, lines of credit, and credit guarantees; bond proceeds; | 7 | | equity investments; service payments; or other receipts; | 8 | | arising out of or in connection with a transportation project, | 9 | | including the development, financing, and operation of a | 10 | | transportation project. The term includes money received as | 11 | | grants, loans, lines of credit, credit guarantees, or | 12 | | otherwise in aid of a transportation project from the federal | 13 | | government, the State, a unit of local government, or any | 14 | | agency or instrumentality of the federal government, the | 15 | | State, or a unit of local government. | 16 | | "Shortlist" means the process by which a responsible | 17 | | public entity will review, evaluate, and rank statements of | 18 | | qualifications submitted in response to a request for | 19 | | qualifications and then identify the proposers who are | 20 | | eligible to submit a detailed proposal in response to a | 21 | | request for proposals. The identified proposers constitute the | 22 | | shortlist for the transportation project to which the request | 23 | | for proposals relates. | 24 | | "Transportation agency" means (i) the Department or (ii) | 25 | | the Authority. | 26 | | "Transportation facility" means any new or existing road, |
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| 1 | | highway, toll highway, bridge, tunnel, intermodal facility, | 2 | | intercity or high-speed passenger rail, or other | 3 | | transportation facility or infrastructure, excluding airports, | 4 | | under the jurisdiction of a responsible public entity, except | 5 | | those facilities for the Illiana Expressway. The term | 6 | | "transportation facility" may refer to one or more | 7 | | transportation facilities that are proposed to be developed or | 8 | | operated as part of a single transportation project. | 9 | | "Transportation project" or "project" means any or the | 10 | | combination of the design, development, construction, | 11 | | financing, or operation with respect to all or a portion of any | 12 | | transportation facility under the jurisdiction of the | 13 | | responsible public entity, except those facilities for the | 14 | | Illiana Expressway, undertaken pursuant to this Act. | 15 | | "Unit of local government" has the meaning ascribed to | 16 | | that term in Article VII, Section 1 of the Constitution of the | 17 | | State of Illinois and also means any unit designated as a | 18 | | municipal corporation. | 19 | | "Unsolicited proposal" means a written proposal that is | 20 | | submitted to a responsible public entity on the initiative of | 21 | | the private sector entity or entities for the purpose of | 22 | | developing a partnership, and that is not in response to a | 23 | | formal or informal request issued by a responsible public | 24 | | entity. | 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. | 3 | | (Source: P.A. 103-570, eff. 1-1-24.) | 4 | | (630 ILCS 5/15) | 5 | | Sec. 15. Formation of public-private agreements; project | 6 | | planning. | 7 | | (a) Each responsible public entity may exercise the powers | 8 | | granted by this Act to do some or all to design, develop, | 9 | | construct, finance, and operate any part of one or more | 10 | | transportation projects through public-private agreements with | 11 | | one or more private entities, except for transportation | 12 | | projects for the Illiana Expressway as defined in the Public | 13 | | Private Agreements for the Illiana Expressway Act. The net | 14 | | proceeds, if any, arising out of a transportation project or | 15 | | public-private agreement undertaken by the Department pursuant | 16 | | to this Act shall be deposited into the Public-Private | 17 | | Partnerships for Transportation Fund. The net proceeds arising | 18 | | out of a transportation project or public-private agreement | 19 | | undertaken by the Authority pursuant to this Act shall be | 20 | | deposited into the Illinois State Toll Highway Authority Fund | 21 | | and shall be used only as authorized by Section 23 of the Toll | 22 | | Highway Act. | 23 | | (b) The Authority may enter into a public-private | 24 | | partnership to design, develop, construct, finance, and | 25 | | operate new toll highways authorized by the Governor and the |
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| 1 | | General Assembly pursuant to Section 14.1 of the Toll Highway | 2 | | Act, non-highway transportation projects on the toll highway | 3 | | system such as commuter rail or high-speed rail lines, and | 4 | | intelligent transportation infrastructure that will enhance | 5 | | the safety, efficiency, and environmental quality of the toll | 6 | | highway system. The Authority may operate or provide | 7 | | operational services such as toll collection on highways which | 8 | | are developed or financed, or both, through a public-private | 9 | | agreement entered into by another public entity, under an | 10 | | agreement with the public entity or contractor responsible for | 11 | | the transportation project. | 12 | | (c) A contractor has: | 13 | | (1) all powers allowed by law generally to a private | 14 | | entity having the same form of organization as the | 15 | | contractor; and | 16 | | (2) the power to develop, finance, and operate the | 17 | | transportation facility and to impose user fees in | 18 | | connection with the use of the transportation facility, | 19 | | subject to the terms of the public-private agreement. | 20 | | No tolls or user fees may be imposed by the contractor | 21 | | except as set forth in a public-private agreement. | 22 | | (d) Prior to commencing the procurement process under an | 23 | | unsolicited proposal or the issuance of any request for | 24 | | qualifications or request for proposals with respect to any | 25 | | potential project undertaken by a responsible public entity | 26 | | pursuant to Section 19 or 20 of this Act, the commencement of a |
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| 1 | | procurement process for that particular potential project | 2 | | shall be authorized by joint resolution of the General | 3 | | Assembly. | 4 | | (e) (Blank). | 5 | | (f) Any project undertaken under this Act shall be subject | 6 | | to all applicable planning requirements otherwise required by | 7 | | law, including land use planning, regional planning, | 8 | | transportation planning, and environmental compliance | 9 | | requirements. | 10 | | (g) (Blank). | 11 | | (h) The responsible public entity shall hold one or more | 12 | | public hearings following its submittals to the General | 13 | | Assembly under subsection (d) of this Section. These public | 14 | | hearings shall address any potential project that the | 15 | | responsible public entity submitted to the General Assembly | 16 | | for review under subsection (d). The responsible public entity | 17 | | shall publish a notice of the hearing or hearings at least 7 | 18 | | days before a hearing takes place, and shall include the | 19 | | following in the notice: (i) the date, time, and place of the | 20 | | hearing and the address of the responsible public entity; (ii) | 21 | | a brief description of the potential projects that the | 22 | | responsible public entity is considering undertaking; and | 23 | | (iii) a statement that the public may comment on the potential | 24 | | projects. | 25 | | (Source: P.A. 103-570, eff. 1-1-24.) |
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| 1 | | (630 ILCS 5/19) | 2 | | Sec. 19. Unsolicited proposals. | 3 | | (a) A responsible public entity may not receive | 4 | | unsolicited proposals for a project . and may thereafter enter | 5 | | into a public-private agreement with a private entity, or a | 6 | | consortium of private entities, for the design, construction, | 7 | | upgrading, operating, ownership, or financing of facilities. | 8 | | (b) A responsible public entity may consider, evaluate, | 9 | | and accept an unsolicited proposal for a public-private | 10 | | partnership project from a private entity if the proposal: | 11 | | (1) is independently developed and drafted by the | 12 | | proposer without responsible public entity supervision; | 13 | | (2) shows that the proposed project could benefit the | 14 | | transportation system; | 15 | | (3) includes a financing plan to allow the project to | 16 | | move forward pursuant to the applicable responsible public | 17 | | entity's budget and finance requirements; and | 18 | | (4) includes sufficient detail and information for the | 19 | | responsible public entity to evaluate the proposal in an | 20 | | objective and timely manner and permit a determination | 21 | | that the project would be worthwhile. | 22 | | (c) The unsolicited proposal shall include the following: | 23 | | (1) an executive summary covering the major elements | 24 | | of the proposal; | 25 | | (2) qualifications concerning the experience, | 26 | | expertise, technical competence, and qualifications of the |
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| 1 | | private entity and of each member of its management team | 2 | | and of other key employees, consultants, and | 3 | | subcontractors, including the name, address, and | 4 | | professional designation; | 5 | | (3) a project description, including, when applicable: | 6 | | (A) the limits, scope, and location of the | 7 | | proposed project; | 8 | | (B) right-of-way requirements; | 9 | | (C) connections with other facilities and | 10 | | improvements to those facilities necessary if the | 11 | | project is developed; | 12 | | (D) a conceptual project design; and | 13 | | (E) a statement of the project's relationship to | 14 | | and impact upon relevant existing plans of the | 15 | | responsible public entity; | 16 | | (4) a facilities project schedule, including when | 17 | | applicable, estimates of: | 18 | | (A) dates of contract award; | 19 | | (B) start of construction; | 20 | | (C) completion of construction; | 21 | | (D) start of operations; and | 22 | | (E) major maintenance or reconstruction activities | 23 | | during the life of the proposed project agreement; | 24 | | (5) an operating plan describing the operation of the | 25 | | completed facility if operation of a facility is part of | 26 | | the proposal, describing the management structure and |
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| 1 | | approach, the proposed period of operations, enforcement, | 2 | | emergency response, and other relevant information; | 3 | | (6) a finance plan describing the proposed financing | 4 | | of the project, identifying the source of funds to, where | 5 | | applicable, design, construct, maintain, and manage the | 6 | | project during the term of the proposed contract; and | 7 | | (7) the legal basis for the project and licenses and | 8 | | certifications; the private entity must demonstrate that | 9 | | it has all licenses and certificates necessary to complete | 10 | | the project. | 11 | | (d) Within 120 days after receiving an unsolicited | 12 | | proposal, the responsible public entity shall complete a | 13 | | preliminary evaluation of the unsolicited proposal and shall | 14 | | either: | 15 | | (1) if the preliminary evaluation is unfavorable, | 16 | | return the proposal without further action; | 17 | | (2) if the preliminary evaluation is favorable, notify | 18 | | the proposer that the responsible public entity will | 19 | | further evaluate the proposal; or | 20 | | (3) request amendments, clarification, or modification | 21 | | of the unsolicited proposal. | 22 | | (e) The procurement process for unsolicited proposals | 23 | | shall be as follows: | 24 | | (1) If the responsible public entity chooses to | 25 | | further evaluate an unsolicited proposal with the intent | 26 | | to enter into a public-private agreement for the proposed |
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| 1 | | project, then the responsible public entity shall publish | 2 | | notice in the Illinois Procurement Bulletin or in a | 3 | | newspaper of general circulation covering the location of | 4 | | the project at least once a week for 2 weeks stating that | 5 | | the responsible public entity has received a proposal and | 6 | | will accept other proposals for the same project. The time | 7 | | frame within which the responsible public entity may | 8 | | accept other proposals shall be determined by the | 9 | | responsible public entity on a project-by-project basis | 10 | | based upon the complexity of the transportation project | 11 | | and the public benefit to be gained by allowing a longer or | 12 | | shorter period of time within which other proposals may be | 13 | | received; however, the time frame for allowing other | 14 | | proposals must be at least 21 days, but no more than 120 | 15 | | days, after the initial date of publication. | 16 | | (2) A copy of the notice must be mailed to each local | 17 | | government directly affected by the transportation | 18 | | project. | 19 | | (3) The responsible public entity shall provide | 20 | | reasonably sufficient information, including the identity | 21 | | of its contact person, to enable other private entities to | 22 | | make proposals. | 23 | | (4) If, after no less than 120 days, no | 24 | | counterproposal is received, or if the counterproposals | 25 | | are evaluated and found to be equal to or inferior to the | 26 | | original unsolicited proposal, the responsible public |
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| 1 | | entity may proceed to negotiate a contract with the | 2 | | original proposer. | 3 | | (5) If, after no less than 120 days, one or more | 4 | | counterproposals meeting unsolicited proposal standards | 5 | | are received, and if, in the opinion of the responsible | 6 | | public entity, the counterproposals are evaluated and | 7 | | found to be superior to the original unsolicited proposal, | 8 | | the responsible public entity shall proceed to determine | 9 | | the successful participant through a final procurement | 10 | | phase known as "Best and Final Offer" (BAFO). The BAFO is a | 11 | | process whereby a responsible public entity shall invite | 12 | | the original private sector party and the proponent | 13 | | submitting the superior counterproposal to engage in a | 14 | | BAFO phase. The invitation to participate in the BAFO | 15 | | phase will provide to each participating proposer: | 16 | | (A) the general concepts that were considered | 17 | | superior to the original proposal, while keeping | 18 | | proprietary information contained in the proposals | 19 | | confidential to the extent possible; and | 20 | | (B) the preestablished evaluation criteria or the | 21 | | "basis of award" to be used to determine the | 22 | | successful proponent. | 23 | | (6) Offers received in response to the BAFO invitation | 24 | | will be reviewed by the responsible public entity and | 25 | | scored in accordance with a preestablished criteria, or | 26 | | alternatively, in accordance with the basis of award |
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| 1 | | provision identified through the BAFO process. The | 2 | | successful proponent will be the proponent offering "best | 3 | | value" to the responsible public entity. | 4 | | (7) In all cases, the basis of award will be the best | 5 | | value to the responsible public entity, as determined by | 6 | | the responsible public entity. | 7 | | (f) After a comprehensive evaluation and acceptance of an | 8 | | unsolicited proposal and any alternatives, the responsible | 9 | | public entity may commence negotiations with a proposer, | 10 | | considering: | 11 | | (1) the proposal has received a favorable | 12 | | comprehensive evaluation; | 13 | | (2) the proposal is not duplicative of existing | 14 | | infrastructure project; | 15 | | (3) the alternative proposal does not closely resemble | 16 | | a pending competitive proposal for a public-private | 17 | | private partnership or other procurement; | 18 | | (4) the proposal demonstrates a unique method, | 19 | | approach, or concept; | 20 | | (5) facts and circumstances that preclude or warrant | 21 | | additional competition; | 22 | | (6) the availability of any funds, debts, or assets | 23 | | that the State will contribute to the project; | 24 | | (7) facts and circumstances demonstrating that the | 25 | | project will likely have a significant adverse impact on | 26 | | on State bond ratings; and |
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| 1 | | (8) indemnifications included in the proposal. | 2 | | (Source: P.A. 103-570, eff. 1-1-24; revised 1-3-24.) | 3 | | Section 99. Effective date. This Act takes effect upon | 4 | | becoming law. |
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